
Glass 

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STATE OF IOWA 

1916 



LAWS RELATING TO 
DRAINAGE sj. 



J" 






Publication Authorized by the Executive Council of 

the State of Iowa 



Compiled Under the Direction of 

W. S. ALLEN 

Secretary of State 

BY 
LOJLA S. BLLIOTT 



DBS MOINES 

ROBERT HENDERSON, STATE PRINTER 
3. M. J AMIESON, STATE BINDER 



STATE OF IOWA 

1916 



LAWS RELATING TO 
DRAINAGE 



Publication Authorized by the Executive Council of 

the State of Iowa 



Compiled Under the Direction of 

W. S. ALLEN 

Secretary of State 

BY 

LOLA S. ELLIOTT 



DES MOINES 

ROBERT HENDERSON, STATE PRINTER 
J. M. JAMIESON, STATE BINDER 



■If/\3 



D. of D. 
OCT 26 1916 



V 



^ 



DRAINAGE LAWS OF IOWA 



CONSTITUTIONAL PROVISION. 

AMENDMENT TO THE CONSTITUTION OF IOWA RELATIVE TO 
DRAINAGE, ADOPTED BY THE ELECTORS OF THE STATE AT 
THE GENERAL ELECTION HELD NOVEMBER 3, 1908. 

That there be added to section eighteen (18) of article one (1) 
of the constitution of the state of Iowa, the following: 

"The general assembly, however, may pass laws permitting the 
owners of lands to construct drains, ditches, and levees for agri- 
cultural, sanitary or mining purposes across the lands of others, 
and provide for the organization of drainage districts, vest the 
proper authorities with power to construct and maintain levees, drains 
and ditches and to keep in repair all' drains, ditches, and levees 
heretofore constructed under the laws of the state, by special assess- 
ments upon the property benefited thereby. The general assembly 
may provide by law for the condemnation of such real estate as 
shall be necessary for the construction and maintenance of such 
drains, ditches and levees, and prescribe the method of making such 
condemnation." 



TITLE X OF THE CODE 

AS AMENDED 

RELATING TO LEVEES, DRAINS, DITCHES AND WATER 

COURSES. 

Section 1939. Supervisors to locate. The board of supervisors 
of any county may locate and cause to be constructed levees, ditches 
or drains, or change the direction of any water course in such county, 
whenever the same will be conducive to the public health, conven- 
ience or welfare. [19 G. A., ch. 44, § 1; 16 G. A., ch. 14(/ § 1- C 
'73, § 1207.] 

The provisions of this chapter are constitutional Hatch v. Pottawattamie 
County 43-442. 

The work is not to be undertaken for private advantage, but for the public 
good. Patterson v Baumer 43-477. 

The county is not liable for damages to land caused by a ditch becomin- ob- 
structed. Dashncr v Mills County 88-401. 



4 IOWA DRAINAGE LAWS § 1940 

The remedy of the person damaged in such case would be to make application 
for the repair of. the ditch and to have a special assessment made for that pur- 
pose. Ibid. 

The power of a board of supervisors to construct ditches and drains under 
these provisions is not restricted in terms, or by necessary inference to territory 
outside of towns and cities. The presumption must be exercised that the board 
will have due consideration for the interests of the public within as well as 
without the limits of such municipal corporation. Aldrich v Paine 106-461; 76 
N. W., 812. 

Sec. 1940. Proceedings — bond — survey — notice. A petition signed 
by a majority of the persons resident in the county, owning land 
abutting upon such proposed improvement, shall be first filed in tne 
office of the county auditor, setting forth the necessity for the same, 
the starting point, route and terminus, together with a bond, with 
sufficient sureties to be approved by him, conditioned to pay all costs 
and expenses incurred in case the supervisors refuse to grant the 
prayer of the petition. The auditor shall thereupon place a copy of the 
petition in the hands of the county surveyor or a competent en- 
gineer, who shall make a survey of the proposed improvement, and 
return a plat and profile thereof to the auditor; which return shall 
set forth a full and detailed description thereof, its availability, ne- 
cessity and probable cost, with a description of each tract of land 
owned by different persons, through or abutting upon which the 
improvement is proposed to be located, how it will be affected thereby, 
and its situation and elevation as compared with that of adjoining 
lands, with such other facts as he may deem material. The auditor 
shall immediately thereafter cause notice in writing to be served 
on the owner of each tract of land, through or abutting upon which 
the proposed improvement is to be located, who is a resident of the 
county, of the pendency and prayer of said petition, and the session 
of the board of supervisors at which the same will be heard, which no- 
tice shall be served ten days prior to said session in the same manner 
that original notices are required to be served. In case any such owner 
is a non-resident of the county, such notice as to him shall be pub- 
lished, once each week, for two consecutive weeks in some news- 
paper published in the county, proof thereof being made by affidavits 
as in case of legal notices published in newspapers, which proof 
shall be filed with the board. [31 G. A., ch. 9, § 15; 19 G. A., ch. 44, 
§ 2; C. '73, § 1208.] 

Under § 1208 of the code of '73 which used the word "adjacent" in describing 
the owners who are required to petition for a ditch, held that the term applied 
to owners of land abutting on the improvement, and not the owners of all the 
land within the congressional subdivision through which it runs. Wormley v 
Board of Supervisors 108-232, 78 N. W. 824. 

Under this section only those through whose land runs or on whose land 
abuts the improvement participate in initiating the improvement, and the kind 
of land to be included is not described, the board of supervisors being required 
to find only that the improvement will be conducive to public health, convenience 
and welfare ; and the district is defined by the commissioners appointed to ap- 
portion the cost to the owners of land along or in the vicinity of such improve- 
ment and to be benefited thereby, such land being classified for this purpose as 
"dry," "low," "wet" or "swamp." Lyon v Sac County 155-367, 136 N. W. 324. 

In a proceeding to enjoin the issuance of bonds for the construction of a ditch, 
the contractor is a necessary party. Tod v Crisman 123-693, 99 N. W. 686. 



§ 1941 IOWA DRAINAGE LAWS 5 

The unconstitutionality of the provision for taxing lands in the vicinity of the 
ditch without notice to the owner thereof, renders the entire provision for assess- 
ment for such ditches invalid. Smith v Peterson 123-672, 99 N. W. 552. 

The provisions of these sections do not contemplate notice to a landowner whose 
land does not abut upon the ditch that he may be assessed therefor, and as he is 
not afforded an opportunity for a hearing the statute is unconstitutional as to 
such owner. Beebe v Magoun 122-94, 97 N. W. 986. 

A bond executed by petitioners to pay all costs and expenses incurred in case 
the supervisors refused to grant the petition, held to be invalid in view of the 
unconstitutionality of the section providing for such bond. Carroll County v. 
Cuthbertson 136-458, 114 N. W. 17. 

A statute which provides for notice to the property owner at some stage of 
the proceedings, before the assessment is made, is not open to constitutional ob- 
jection simply because it does not proyide for a new or additional notice of each 
successive step leading up to the assessment. Ross v Board of Supervisors 123- 
427, 104 N. W. 506. 

The amendatory statute, 30 G. A., ch. 67, providing for notice in proceedings 
already instituted, is constitutional. Ibid. 

No one is entitled to raise the objection of want of notice of the proceedings 
except the party entitled to notice. Ibid. 

The landowner is not entitled to notice of the hearing as to the extent of the 
drainage district and as to whether his land shall be included therein. Ibid. 

It is not required that the petition contain an accurate description of the lands 
to be included in the drainage district. The matter of the exact boundary is to 
be determined upon the engineer's survey and report. Mackay v Hancock 
County 137-88, 114 N. W. 552. 

An owner who has had notice of the proceeding in which it is sought to have 
his land included within a drainage district cannot, after the district has been 
established and the improvement made, question the validity of the proceeding 
on the ground that his property was not within the scope of the benefits. Ibid. 

About the only office of the petition, aside from alleging the character of land 
and the nature of improvement, seems to be to point out the locality in a general 
way and to indicate those who are to give the security for the preliminary costs 
and expenses to be paid in event the petition shall be rejected. Zinser v. Board 
of Supervisors 137-660, 114 N. W. 51. 

As to the requirements of the petition under subsequent statutes, see code supp. 
§ 1989-a2. Prichard v Board of Supervisors 150-565, 129 N. W. 970. 

The return of the engineer is the basis of all subsequent proceedings, but he 
should not include 'all the lands within the watershed unless affected by the con- 
templated improvement. Zinser v. Board of Supervisors, 137-660, 114 N. W. 51. 

In cases of a reassessment and relevy landowners have an opportunity to ap- 
pear and be heard and at such hearing the board may hear and determine all 
objections made and may increase, diminish, annul or affirm the apportionment 
as reported. Howard v Emmet County 140-527, 118 N. W. 882. 

The proceedings for the establishment of a drainage district may be had under 
the provisions of code supp. § 1989-al, et seq instead of under these sections. 
Hoyt v Brown 153-324, 133 N. W. 905. 

Sec. 1941. Location — damages. The board, at the session set 
for hearing said petition, shall thereupon proceed to hear and de- 
termine the petition, and, if necessary, view the premises, and if they 
find such improvement conducive to the public health, convenience 
or welfare, and no claims shall have been made for damages as pro- 
vided in the next section, they shall locate and establish the same 
on the route specified in the plat and return of the county surveyor 
or engineer. But if any such claim has been made, further pro- 
ceedings shall be adjourned to the next regular session, and the 
county auditor shall forthwith appoint appraisers to assess such 



6 IOWA DRAINAGE LAWS §§ 1942-1944 

damages, who shall proceed in the manner provided by law for the 
assessment of damages in the opening of roads; and the sum so 
assessed in favor of said claimant shall be paid in the first instance 
by the parties benefited by such improvement, or secured to be paid 
upon such terms and conditions as the county auditor may deem 
just and proper; and the board shall, at the next regular session after 
such damages have been assessed and paid, or secured, as aforesaid, 
proceed to locate and establish the improvement as hereinbefore pro- 
vided, and place a competent engineer in charge of the work. [19 
G. A., ch. 44, § 3; C. '73, § 1209.] 

Even though the notice is not in the language of the statute, if it is not so de- 
fective that it can be said there is no notice, the action of the board in holding 
it to be sufficient, can not be collaterally assailed. Oliver v. Monona County, 
117-43. 90 N. W. 510. 

No express finding that the ditch is necessary or would conduce to the public 
health, convenience or welfare is required. A finding by the board that all the 
requirements of the law have been fully complied with is sufficient, there being 
no requirement that a finding as to the necessity for the ditch shall be made 
of record. Ibid. 

The validity of the establishment of a ditch is not affected by the fact that 
claims for damages are not made and allowed before such location. The objec- 
tion is not jurisdictional. Ibid. 

A landowner who has made claim for damages which has been passed on 
by the board of supervisors can not afterwards enjoin the prosecution of the 
work because the damages allowed are not sufficient. Ibid. 

Sec. 1942. Claim for damages. Any person claiming damages 
as compensation for land required for the construction of such im- 
provement, or for injury sustained by the change of direction of 
any such water course, shall make his application in writing there- 
for to the board of supervisors, on or before the first day of the 
session at which the petition has been set for hearing, and on failure 
to make the same shall be held to have waived his right thereto. 
[19 G. A., ch. 44, § 4; 16 G. A., ch. 140, § 2; C. '73, § 1210.] 

If in the construction of a county drain or ditch through the limits of a city 
or town injury will result to the streets or an additional burden of expense be 
cast upon the corporation, there would seem to be no reason why damages 
might not be claimed by such corporation as well as by the individual owners 
through whose land the ditch extends. Aldrich v. Paine s 106-461. 76 N. W. 
812, 

Sec. 1943. Work divided. When the board shall have established 
any such improvement, it shall divide the same into suitable sec- 
tions, not less in number than the number of tracts of land of dif- 
ferent owners through which the same, may be located, and prescribe 
the time within which work upon each section shall be completed. 
[19 G. A., ch. 44, § 5; C. '73, § 1211.] 

Sec. 1944. Letting work — payment. The auditor shall cause no- 
tice to be given of the time and place of letting, the kind and ap- 
proximate amount of work to be done on each section, and the time 
fixed for its completion, by publication, once each week, for four 
consecutive weeks in some newspaper printed in said county, and 
shall let it upon each separate section to the lowest bidder therefor, 



§ 1945 IOWA DRAINAGE LAWS 7 

who shall be required, to execute a boud, with sufficient sureties, in 
an amount equal to ten per cent of the estimated cost of the work 
so let, or deposit such amount in cash with the auditor, as security 
for the performance of his contract. The engineer in charge of the 
construction shall furnish the contractor monthly estimates of the 
amount of work done on each section, and upon the filing of the 
same with the auditor, he shall draw a warrant in favor of the con- 
tractor for eighty per cent of the value of the work done, according 
to the estimate; and when said improvement is completed to the 
satisfaction of the engineer in charge, and so certified by him to the 
auditor, he shall draw a warrant in favor of said contractor upon the 
levee or drainage fund for the balance due, as provided in the fol- 
lowing section. If any person to whom any portion of said work 
has been let shall fail to perform the same as, and in the time, 
specified in his contract, the cash deposited by him shall be forfeited 
to, or the penalty named in the bond may be recovered in an action 
thereon by, the county auditor, for the benefit of the levee or drain- 
age district, on said contract, as liquidated damages, and it shall be 
relet by the auditor in the manner hereinbefore provided. [31 G. A., 
en. 9, § 16; 19 G. A., ch. 44, § 6; 18 G. A., ch. 85, § 8; 16 G. A., 
ch. 140, § 1; C. '73, § 1212.] 

One who claims to be the lowest bidder cannot maintain an action of man- 
damus to compel the board to award the contract to him. Vincent v. Ellis, 
116-609, 88 N. W. 836. 

The statutory provision as to forfeiture of cash deposit and recovery of 
a penalty does not deprive the board of supervisors of their right to treat the 
whole contract as forfeited on default of the contractor to perform, and institute 
new proceedings for the construction of a different ditch. The board is not 
bound under such circumstances to allow the county auditor to relet the work 
under the former proceedings. Brown v. Board of Supervisors, 129-533, 105 
N. W. 1019. 

This statute confers upon the board authority to relet the work and maintain 
an action for damages against the delinquent contractor on his failure to comply 
with the terms of the contract. Webster County v. Nelson, 154-660, 135 N. W. 
390. 

If the contract provides for liquidated damages, the board has an election 
to forfeit the contract on account of the breach of its conditions and relet the 
work instead of relying upon the recovery of the damages provided for. Ibid. 

The damages recoverable upon forfeiture of the contract should be assessed 
upon the basis of the necessary or reasonable cost of taking the work as it existed 
when the contract was forfeited and carrying it forward to completion. Ibid. 

Where the bond given by the contractor covers his obligation to carry out 
such contract and not merely the obligation to pay liquidated damages, the 
surety is bound by the contractor's liability in the event of forfeiture of the 
contract and reletting the work. Ibid. 

Further, see notes to supp. § 1989-a8. 

Sec. 1945. Costs and fees — how paid. The auditor and engineer 
shall each be allowed for their services such sum as may be fixed by the 
board of supervisors, and all other fees or costs shall be the same 
as is provided by law for like services in other cases, and if the county 
surveyor performs service in relation thereto, the same as is pro- 
vided by law; all of which, together with damages assessed, shall 



8 IOWA DRAINAGE LAWS § 1946 

be paid out of the county treasury from the fund collected for that 
purpose, upon the order of the county auditor. [16 G. A., ch. 140, 
§ 3; C. '73, § 1213.] 

A payment out of the general funds contrary to the provisions of this section 
does not render the tax provided by the next section invalid. Patterson v. 
Baumer, 43-477, 481. 

As the statute points out a fund from which to pay costs and expenses of 
preliminary proceedings, the county is under no obligation to pay such costs 
and expenses save from the fund provided. Carroll County v. Cuthoertson, 
136-458, 114 N. W. 17. 

Sec. 1946. Assessment of costs and damages — classification. When 
any levee, ditch, drain, or change of direction of any watercourse 
shall have been located and established, as provided in this chapter, 
or when it shall be necessary to cause the same to be repaired or 
reopened, the auditor shall appoint three persons, one of whom shall 
be a competent civil engineer, and two who shall be resident free- 
holders of the county, not living within the township or townships 
where the improvement is or is to be located, and not interested 
therein or in a like question, nor related to any party whose land 
is affected thereby, who shall within twenty days after such appoint- 
ment personally inspect and classify as "dry," "low," "wet," or 
"'swamp" all the land benefited by the location and construction of 
the improvement, or the repairing or reopening of the same, and 
^hall make an equitable apportionment of the cost, expenses, cost of 
construction, fees, and damages assessed for the construction of any 
\mch improvement, or of repairing or reopening the same, and make 
jeport thereof in writing to the board of supervisors and file the 
same with the county auditor who shall immediately thereafter fix 
a time for hearing objections thereto before the board of supervisors, 
and cause to be served upon the owner of each tract of land or lot 
described in said report as shown by the transfer books in the audi- 
tor's office notice in writing of the filing and pendency of said re- 
port, the amount of special assessment apportioned to such owner, 
the day set for hearing the same, and that all objections thereto 
must be made in writing and filed with the county auditor on or 
before noon of the day set for such hearing, which notice as to resi- 
dents of the county shall be served not less than ten days prior to 
the day set for such hearing in the same manner that original notices 
are required to be served, and as to nonresidents of the county such 
notice shall be served by publishing the same once each week for 
two consecutive weeks, the last publication not less than ten days 
prior to the day set for hearing, in some newspaper published in 
the county and by serving the same upon the person or persons in 
the actual occupancy of the property, not less than ten days prior to 
the day set for such hearing. When the day set for hearing has 
arrived the board of supervisors shall proceed to hear and deter- 
mine all objections made and filed to said report, and may increase, 
diminish, annul or affirm the apportionment made in said report 
or any part thereof as may appear to the board to be just and equit- 
able, which apportionment shall be assessed among the owners of 



§ 1946 IOWA DRAINAGE LAWS 9 

the land along or in the vicinity of such improvement and to be 
benefited, thereby, in proportion to the benefit to each of them, and 
levied upon the lands of the owners so benefited in said proportions, 
and collected in the same manner as other taxes are levied and col- 
lected for county purposes; which fund so collected shall be kept 
separate from other county funds, and shall be paid out only for 
purposes properly connected with the improvement, on the order of 
the county auditor, on claims properly certified by the engineer in 
charge of the improvement as in this chapter provided, or on the 
order of the board of supervisors. The engineer shall receive for 
each day's service, while so engaged, .five dollars, and the other com- 
missioners shall receive each two dollars per day, to be paid out of 
the funds so collected. In order to prevent or repair a break in any 
levee in time of high water, any member of the board of supervisors 
may at once employ the necessary labor to repair the levee or pre- 
vent a break thereof, and the necessary and reasonable expense 
therefor shall be audited by the board of supervisors and paid from 
the levee fund. [30 G. A., ch. 67, § 1; 29 G. A., ch. 78, § 1; 21 
G. A., ch. 139; 19 G. A., ch. 44, § 7; 16 G. A., ch. 140, § 4; C. '73, 
§ 1214.] 

These statutory provisions practically authorize the creation of a drainage 
district and the assessment of the expenses for the improvement upon all the 
property coming within the general benefit involved in the promotion of the 
public health, convenience and welfare. It is not the proximity of the parcels 
of land in question to the ditch or the benefit to the parcels from the construction 
thereof which is the basis of the assessment, but all the parcels within the 
drainage district are to be assessed uniformly with the expense in accordance 
with their general character. The owner is entitled to notice with reference 
to whether his land is included within the drainage district and this is sufficient 
to charge him with notice of the subsequent proceedings. Oliver v. Monona 
County, 117-43, 90 N. W. 510. 

The funds derived from a special assessment for the construction of a ditch 
do not belong to the county. Yockey v. Woodbury County, 130-412, 106 N. W. 
950. 

Under this section, held that the entire assessment on the lands of an owner, 
some of which abutted upon the ditch, while others were in the vicinity thereof, 
was invalid for want of the provision for notice to the owner with reference to 
the proposed assessment on land in the vicinity. Smith v. Peterson, 123-672, 
99 N. W. 552. 

The act of 30 G. A., ch. 67, relating to special assessments for ditches, pro- 
vides that when the report is made by the commissioners appointed to classify 
the benefited lands and apportion the expenses notice shall be served personally 
upon residents and upon nonresidents by publication, and that upon such hear- 
ing the board shall determine all objections to the assessment and may affirm 
or modify the apportionments, and this provision is made applicable to proceed- 
ings already instituted. It was competent for the legislature to thus provide 
for notice in existing proceedings. Ross v. Board of Supervisors, 128-427, 
104 N. W. 506. 

This section has no application to the proceedings provided for by code § 1952. 
Smittle v. Haag, 140-492, 118 N. W. 869. 

The unconstitutionality of this section is remedied by the provisions of chs. 
67 and 68, 30 G. A. code supp. §§ 1989-al-1989-a47. Ibid. 

The county as such has no interest in the establishment of a ditch constructed 
for the benefit of a fraction of its territory. Canal Construction Co. v. Wood- 
bury County, 146-526, 121 N. W. 556. 



10 - IOWA DRAINAGE LAWS §§ 1946-a-1946-d 

Sec. 1946-a. Applicable to proceedings now pending. That said 
section nineteen hundred forty-six of the code as amended by section 
one hereof shall be construed to apply to all proceedings now pending 
before boards of supervisors for the location and construction of 
levees, drains, ditches or watercourses under the provisions of chap- 
ter two, title ten of the code where the apportionment, assessment 
or levy of the cost of the improvement has not yet been made, as 
well as to proceedings instituted hereafter. [30 G. A., ch. 67, § 2.] 

Sec. 1946-b. Reassessment and relevy. Where the assessment and 
levy on account of any ditch, drain or watercourse has been made 
by the board of supervisors of any county under the provisions of 
said section nineteen hundred forty-six of the code without notice 
or legal notice to the owner of the land affected thereby and the 
whole or any part thereof remains unpaid, the board of supervisors 
shall have the authority to recall the assessment or levy thus made 
without notice and proceed anew as provided in section one hereof 
to apportion and levy the cost of such improvement among the 
owners and upon the land benefited thereby, taking as a basis the 
original apportionment, and report of the commissioners upon which 
the board had theretofore acted, and the new assessment and levy 
made upon notice and hearing in such cases shall be certified by the 
county auditor to the county treasurer, re-entered upon the tax list 
and collected as other taxes for county purposes, and all payments 
made under the prior assessment and levy shall be credited upon the 
new assessment and levy. [30 G. A., ch. 67, § 3.] 

Sec. 1946-c. Completion of and payment for work already begun. 

When any levee, ditch, drain, watercourse or change of watercourse 
shall have been heretofore established by any of the boards of su- 
pervisors of this state and contract or contracts let therefor, and 
the improvement wholly or partly constructed or drainage bonds is- 
sued on account thereof and the proceedings or tax therefor have 
been or shall be for any cause found invalid and the board of super- 
visors has found or shall find that such improvement will be con- 
ducive to the public health, convenience or welfare, such board is 
authorized to provide for the completion of the work and the pay- 
ment therefor, and for the payment of the work already done and 
of the drainage bonds issued and to that end shall recall the tax 
theretofore levied and shall reascertain the cost and expense of such 
improvement, and after notice and hearing as provided in this act 
shall assess and levy the same upon the lands benefited thereby, and 
the said board and the other county officers shall proceed as provided 
by section three and the other provisions of this act. Such reassess- 
ment and relevy of taxes shall be in proportion to and not in excess 
of benefits, and all taxes theretofore paid upon such improvement 
shall be credited as provided in section three of this act. [30 G. A., 
ch. 67, § 4.] 

Sec. 1946-d. Drainage bonds. Section nineteen hundred fifty-three 
of the code shall be construed to apply to and authorize the issu- 



§§ 1946-e-1947 IOWA DRAINAGE LAWS 11 

ance of drainage bonds in proceedings heretofore or hereafter in- 
stituted under section nineteen hundred forty of the code. [30 G. 
A., ch. 67, § 5.] 

Sec. 1946-e. Future levies. Such assessment shall fix the pro- 
portion for all future levies on account of such improvement or the 
repair or reopening thereof, and may be levied in one year or ap- 
portioned among a series of years, and drainage bonds issued there- 
for as provided by section nineteen hundred fifty-three of the code, 
and appeals may be taken as provided by section nineteen hundred 
forty-seven of the code. [30 G. A., ch. 67, § 6.] 

Sec. 1947. Appeals. An appeal may be taken to the district court 
from the order of the board of supervisors in fixing the assessment 
upon lands, in the same manner appeals may be taken in the loca- 
tion of roads, and within the same time. But on such appeal it shall 
not be competent to show that the lands assessed were not benefited 
by the improvement. The petitioners, or any of them, and claim- 
ants for damages as compensation for lands taken or injuries sus- 
tained in any such proceedings, may in like manner appeal from the 
order locating and establishing such improvement, or refusing so to 
do, or from the amount of damages allowed, and the county audi- 
tor shall keep a full and complete record of all proceedings in each 
case, and, upon an appeal being taken, shall make out transcripts 
thereof as provided in appeals taken from the assessment of dam- 
ages in cases of the location of roads. [21 G. A., ch. 139; 19 G. A., 
ch. 44, §§ 7, 8, 11; 18 G. A., ch. 85, § 4; 16 G. A., ch. 140, §§ 4, 
5; C. '73, §§ 1214-16.] 

The landowner, being given opportunity to appear before the board of super- 
visors and make objection that his land as reported by the commissioner is not 
in fact benefited by the improvement, is concluded by the finding of the board, 
and such provision is not unconstitutional. Ross v. Board of Supervisors, 128- 
427, 104 N. W. 506. 

On an appeal to the district court from an order of the board of supervisors 
refusing to order the construction of a ditch on an application therefor there 
is no right to a jury trial. In re Bradley, 108-476, 79 N. W. 280. 

The petitioners for the establishment of a public ditch being required to con- 
tribute to the expense of establishing it, are entitled to notice of appeal from 
the award of damages taken by a claimant for such damages. Henderson v. 
Calhoun County, 129-119, 105 N. W. 383. 

The board of supervisors has no authority to direct the dismissal of an appeal 
from its action in fixing the assessment upon lands. The county or board of 
supervisors if properly a party to the appeal in any sense is such party only 
in a nominal or representative capacity and the real parties in interest have 
the right to control the proceedings. Temple v. Hamilton County, 134-706, 112 
N. W. 174. 

The board is given the authority to pass upon the necessity of the improve- 
ment and determine its public character and fix the boundaries of the district, 
which power is legislative rather than judicial ; the court should on appeal be 
reluctant to interfere with the exercise of discretion on the part of the board. 
Ibid. 

On appeal from an assessment of benefits the notice must be served on the 
first four petitioners. Service on the county auditor only is not sufficient. Poage 
v. Grant Twp. etc. Drainage Dist. Co., 141-510, 119 N. W. 976. 



12 IOWA DRAINAGE LAWS §§ 1948-1950 

There is no provision for intervention in the district court by parties who are 
not residents of the county although they may be affected by the establishment 
of the proposed district. Prichard v. Board of Supervisors, 150—565, 129 N. 
W. 970. 

Sec. 1948. Nuisance — repeal. That the law as it appears in sec- 
tion nineteen hundred forty-eight of the supplement to the code, 
1907, be and the same is hereby repealed. [35 G. A., ch. 154, § 1.] 

Sec. 1949. Through two or more counties. When the improvement 
petitioned for extends into or through two or more contiguous coun- 
ties, or parts thereof, the boards of supervisors of each of the coun- 
ties, upon the presentation of the petition, shall appoint a commis- 
sioner, and the commissioners thus appointed, within twenty days 
after the selection of the one last named, shall meet and locate the 
same through or into said counties. They shall appoint a competent 
engineer, who shall have charge of the construction of the work, 
and with him shall make a survey of the proposed levee, ditch, drain, 
or change of watercourse, and make written return thereof to the 
county auditors of the several counties in which the location shall 
be made in whole or in part; which return shall in all respects be 
the same as is required in case of the location of such improvement 
in but a single county; and thereafter all subsequent proceedings re- 
lating to the condemnation or taking of land, the compensation 
therefor, damages on account of the work, assessment of lands for 
taxation, and in every other matter and thing, shall in all respects 
be the same as in like cases where the improvement is situated in 
but one county. Appeals in such case may be taken to the district 
court of the county where the land is situated. [19 G. A., ch. 44, 
§§ 9-11; 18 G. A., ch. 85, §§ 2-5; 17 G. A., ch. 121.] 

The provisions of this section do not dispense with the necessity for a petition 
signed by a majority of the residents interested in the improvement. Richman 
v. Board of Supervisors, 70-627. 

In a proceeding relating to the establishment of a drainage district in two 
or more counties involving a matter concerning which the boards of the respec- 
tive counties are required to act jointly, notice of appeal must be served on the 
auditor of each county and the court acquires no jurisdiction upon the service 
on only one such auditor. In re Appeal of Head, 141-651, 118 N. W. 884. 

Failure to record the proceedings in each of the counties does not affect the 
jurisdiction of the court on appeal in such a case. Ibid. 

Sec. 1950. Apportionment of assessments. If the first assess- 
ment made by the board of supervisors of the several counties is 
insufficient to pay the cost of construction, additional assessment 
may be made in the same ratio as the first; and they shall make 
additional assessments in like manner for repairing said improve- 
ments, when needed; if a greater amount is collected in either 
county by such assessments than is required to pay for the work 
actually done therein, or if more work be done than the equitable 
tax in that county will pay for, then the boards of supervisors of 
the counties interested shall jointly meet and ascertain in which 
the excess and deficiency exist, and the excess shall be transferred 
to the county having a deficit, or, if there be more than one, then 
ratably to such counties. [19 G. A., ch. 44, § 11; 18 G. A., ch. 85, 
§§ 6, 7.] 



§§ 1951-1952 IOWA DRAINAGE LAWS 13 

Sec. 1951. Levees, ditches or drains in public highway — highway 
along levee. Levees, ditches, drains and embankments may be lo- 
cated and constructed within the limits of public highways, on either 
or both sides of and along the same, to be so built as not materially 
to interfere with the public travel thereon, by taxation and assess- 
ment under the provisions of this chapter, and, when constructed, 
shall be under the control of the board of supervisors of the county 
in which they are situated; and it shall have power to grant a right 
of way thereon to any railway that will maintain them while used 
by it, subject to any claim for damages against the company in any 
condemnation proceedings which shall be instituted, and the dam- 
ages awarded, paid, or secured to be paid before possession shall 
be given, but the county shall not be required on account thereof or 
otherwise to keep up such improvements at its expense. The board 
of supervisors shall have power to establish public highways along 
and upon any levee built under the provisions of this chapter, pro- 
vided that when so used the same shall be worked as other highways 
and so as to at all times maintain its condition as a levee. [29 G. 
A., eh. 78,, § 3; 20 G. A., ch. 186, § 1.] 

Sec. 1952. Petition for drain — proceedings. When the petition 
of one hundred voters of the county, setting forth that any body or 
district of land in said county, described by metes and bounds or 
otherwise, is subject to overflow, or too wet for cultivation, and the 
public health, convenience or welfare will be promoted by draining, 
ditching or leveeing the same, or changing a watercourse, and also 
a bond conditioned as required in case of proceedings for the loca- 
tion of levees, drains, ditches, and changes of watercourses shall be 
filed with the county auditor, he shall appoint a competent engineer 
or commissioner, who shall proceed to examine the lands described, 
and may survey and locate such improvement as may be necessary 
for the reclamation of such lands or any part thereof, and for the 
public health, convenience or welfare, and shall make substantially 
the same report, and the same proceedings shall be had, as is pro- 
vided by law for the location and construction of ditches, drains, and 
changes in watercourses, and two or more counties may in the same 
manner unite in such work. [20 G. A., ch. 186, § 2.] 

Where a petition is apparently sufficient as to the number of signers the 
action of the board of supervisors in entertaining jurisdiction of the proceeding 
cannot be collaterally assailed. Oliver v. Monona County, 117-43, 90 N. W. 510. 

The essential facts which must be alleged and established before the improve- 
ment can be ordered, are, that the body or district of land is subject to over- 
flow, or is too wet for cultivation, and that the public health, convenience or 
welfare will be promoted by the proposed work. The duty of hearing and deter- 
mining this question is committed in the first instance to the board of super- 
visors, and until the truth of both of these propositions has been established 
to the satisfaction of such board, the order for the location and construction 
of the improvement cannot rightfully be made. If the supervisors fail to find 
facts without which the order for the drain or ditch could not be made, they 
have no jurisdiction to proceed. In re Bradley, 117-472, 91 N. W. 780. 

While it is required by code § 1940 that the petitioners in an application for 
a ditch to be constructed at the public expense shall give a bond to pay all 



14 IOWA DRAINAGE LAWS §§1953-1954 

costs and expenses incurred m case the board of supervisors refuse to grant 
the prayer of the petition, nevertheless, in an appeal in such a proceeding the 
court may tax the costs against the successful party. Ibid. 

A property owner who has knowledge of the proceedings and allows the 
public improvement to proceed without objection cannot afterwards question 
the validity of the tax on account of irregularity. Thompson v. Mitchell, 133- 
527, 110 N. W. 901. 

Under this section the petition must describe the body or district of land by 
metes and bounds, or otherwise, and allege that it is subject to overflow or too 
wet for cultivation. Lyon v. Sac County, 155-367, 136 N. W. 324. 

Sec. 1953. Drainage bonds. If the board of supervisors shall 
determine that the estimated cost of reclamation of such district 
of lands is greater than should be levied in a single year upon 
the lands benefited, it shall fix the proportion that should be levied 
and collected each year, and may issue drainage bonds of the county, 
bearing not more than eight per cent annual interest, and payable 
in the proportions and at the times when such taxes so apportioned 
will have been collected, and may devote the same at par to the 
payment of the work as it progresses, or may sell the same at not 
less than par and devote the proceeds to such payment; and should 
the cost of such work exceed the estimate, a new apportionment of 
taxes may be made, and other bonds issued and used in like manner; 
but in no case shall the bonds run longer than fifteen years, and at 
least ten per cent in amount of those issued on the first estimate 
shall be payable annually. The board may divide the land to be 
benefited into drainage districts, which shall be accurately described 
and numbered, and such drainage bonds shall be in sums of not less 
than fifty dollars each, numbered consecutively, and issued as other 
county bonds are, and shall specify that they are drainage bonds, 
and designate by number the drainage district on account of which 
they are issued. In no case shall the amount of the bonds issued 
exceed fifty per cent of the value of the lands in the drainage dis- 
trict, as shown by the last assessment for taxation. Each bond so 
issued shall express on its face that it shall only be paid by taxes 
assessed, levied and collected on the lands within the district so 
designated and numbered, and for the benefit of which district such 
bond was issued. In no case shall any tax be levied or collected for 
the payment of such bond or bonds, or the interest thereon, on any 
property outside of the district so numbered, designated and bene- 
fited. [22 G. A., ch. 97; 20 G. A., ch. 186, § 3.] 

Sec. 1954. Tax to pay bonds. The board shall levy each year 
on the lands benefited a tax sufficient to pay the interest on such 
bonds, and so much of the principal as falls due in the succeeding 
year; and such tax shall be collected in the same manner as other 
county taxes, and carried to the credit of the drainage district on 
account of which the bonds are issued, and be used to pay the prin- 
cipal and interest of said bonds as the same fall due, and any surplus 
may be devoted to payment for works of reclamation in said district, 
or repairs thereof. [20 G. A., ch. 186, § 4.] 



§ 1955 IOWA DRAINAGE LAWS 15 

Sec. 1955. Drains through land of another — application — notice. 

Section nineteen hundred fifty-five of the code is hereby repealed and 
the following substituted therefor: 

"Whenever the owner of any land shall desire to construct any 
levee, open ditch, tile or other underground drain, for agricultural, 
sanitary or mining purposes or for the purpose of securing more 
complete drainage or a better outlet, across the lands of others, or 
across or through the right of way and roadbed of a railroad, and 
shall be unable to agree with the owner of any such lands, or with any 
such railroad company, through whose land or property he desires 
to construct the same, with regard to the location or manner of con- 
structing any such ditch, drain or levee, or with regard to the com- 
pensation to be made, or with regard to any other matter properly 
connected therewith, he may file with the township clerk of the 
township in which any such land or right of way is situated, an ap- 
plication in writing, setting forth a description of the land or other 
property through which he is desirous of constructing any such levee, 
ditch or drain, the starting point, route, terminus, character, size and 
depth thereof. Upon the riling of any such application, the clerk shall 
forthwith fix a time and place for hearing thereon before the town- 
ship trustees of his township, which hearing shall be not more than 
ninety days nor less than thirty days from the time of the filing of 
such application and thereupon the township clerk shall cause no- 
tice in writing to be served upon the owner of each tract of land 
across which any such levee, ditch or drain, is proposed to be lo- 
cated, as shown by the transfer books in the office of the county 
auditor, and also upon the person in actual occupancy of any such 
lands, of the pendency and prayer of such application, [and] the 
time and place set for hearing on the same before the township 
trustees, which notice; as to residents of the county and railroad com- 
panies, shall be served not less than ten days before the time set 
for such hearing, in the manner that original notices are required 
to be served. In case any such owner is a nonresident of the county, 
such notice as to him shall be posted in three public places within 
the township where his land is situated at least fifteen days before 
the time set for such hearing, one of which places shall be upon the 
land of which he is the owner. Such notices may be served upon a 
railroad company by serving the same upon its nearest station agent. 
If at the hearing it should appear that any person entitled to notice, 
as provided herein, has not been served with notice as herein pro- 
vided, the township trustees may postpone such hearing and fix a 
new time for the same and notice of such new day of hearing may be 
served on such omitted persons in the manner and for the same 
length of time provided herein, and by fixing such new day for hear- 
ing and by adjournment of the proceedings to such time, the trustees 
shall not be held to have lost jurisdiction of the subject matter of 
such proceeding nor of any persons previously served with notice. 
Any person or corporation claiming damages as compensation for 
or on account of the construction of any such improvement, shall 



16 IOWA DRAINAGE LAWS §§ 1956-1957 

file a claim in writing therefor with the township clerk at least two 
days before the day fixed for hearing on the application and a failure 
to file such claim at the time specified shall be deemed to be a waiver 
of the right to claim or recover such damage. The term 'lands' as 
used in this and the next section shall include right of way and other- 
real estate of a railroad company." [33 G. A., ch. 117, § 1.] [22 G. 
A., eh. 96, §§ 1, 6; 20 G. A., eh. 188, §§ 1, 6.] 

Sec. 1956. Hearing — action of trustees. Section nineteen hun- 
dred fifty-six of the code is hereby repealed and the following sub- 
stituted therefor: 

"At the time set for hearing on any such application, the trustees, 
if they are satisfied that the provisions of the preceding section have 
been complied with, shall proceed to hear and determine the suffi- 
ciency of the application as to form and substance, which applica- 
tion may be amended both as to form and substance before final 
action thereon. They shall also determine the merits of the appli- 
cation, all objections thereto and all claims filed for damages that 
may be occasioned by the location and construction of the proposed 
drainage improvement, and, if deemed necessary, the trustees may 
view the premises. The trustees may adjourn the proceedings from 
day to day, but no adjournment shall be for a longer period than 
ten days. When the time for final action shall have arrived, the 
township trustees shall, if they find that the levee, ditch or drain 
petitioned for will be beneficial for sanitary, agricultural or mining 
purposes, locate the same and fix the points of entrance and exit 
on such land or property, the course of the same through each tract 
of land, the size, character and depth thereof, when and in what 
manner the same shall be constructed, how kept in repair, what 
connections may be made therewith, what compensation, if any, shall 
be made to the owners of such land or property for damages by 
reason of the construction of any such improvements, and any other 
question arising in connection therewith. The trustees shall reduce 
their findings, decision and determination to writing, which shall be 
filed with the clerk of such township, who shall record it in his book 
of records, together with the application and all other papers filed 
in connection therewith, and he shall cause the findings and decision 
of the trustees to be recorded in the office of the county recorder of 
the county in which such land is situated, and said decision shall be 
final unless appealed from as provided in the next section." [33 
G. A., ch. 117, § 2.] [22 G. A., ch. 96, §§ 2, 3; 20 G. A., ch. 188, 
§§ 2, 3.] 

Sec. 1957. Appeal. Either party may appeal to the district court 
from any such decision by causing to be served, within ten days 
from the time it was filed with the clerk, a notice in writing upon 
the opposite party of the taking of such appeal, which notice shall 
be served in the same manner as is provided for the service of orig- 
inal notices. If the appellant is the party petitioning for the drain, 
he shall also file a bond, conditioned to pay all costs of appeal that 
may be assessed against him, which bond, if good and sufficient, shall 



§§ 1958-1959 IOWA DRAINAGE LAWS 17 

be approved by the township clerk. The cause shall be tried in the 
district court by ordinary proceedings, upon such pleading as. the 
court may direct, each party having the right to offer such testimony 
as shall be admissible under the rules of law. If the appellant does 
not recover a more favorable judgment in the district court than he 
received in the decision of the trustees, he shall pay all the costs of 
appeal. [22 G. A., ch. 96, § 7.] [20 G. A., ch. 188, § 7.] 

A prior statute provided for an appeal only in case damages were awarded, 
and was therefore unconstitutional because it denied the land owner the right 
of trial by jury and deprived him of his property without due process of law. 
Fleming v. Hull,, 73-598. 

Sec. 1958. Transcript. In case of appeal, the township clerk shall 
certify to the district court a transcript of the proceedings before 
the trustees, which shall be filed in said court with the appeal bond, 
the party appealing paying for said transcript and the docketing of 
said appeal, as in other cases. The party claiming damages shall 
be the plaintiff, and the applicant shall be the defendant; and the 
court shall render such judgment as shall be warranted by the ver- 
dict, the facts, and the law upon all the matters involved, and make 
such orders as will cause the same to be carried into effect. [Same, 
§ 8.] 

Sec. 1959. Costs and damages paid — railroad land. The appli- 
cant shall pay the costs of the trustees and clerk and for the serving 
of notices for hearing, the fees of witnesses summoned by the trustees 
on said hearing, and the recording of the finding of said trustees by 
the county recorder. He shall pay all damages awarded, before en- 
tering on the construction of the drain through the land of another. 
If, after the decision of the trustees locating said drain, the party 
applying therefor shall pay to the party through whose land said 
drain is to be constructed the damages awarded to said party, or 
shall pay the same to the trustees for his use, he may proceed to 
construct said drain in accordance with the decision of the trustees, 
and the taking of an appeal shall not affect his right to proceed with 
the construction of the same. If any such ditch or drain shall be lo- 
cated through or across the right of way or other land of a railroad 
company, the trustees shall determine the cost of constructing the 
same across and through such property and the railroad company 
shall have the privilege of constructing such improvement through its 
property in accordance with the specifications made by the trustees 
and recover the cost thereof as fixed by the trustees. But such rail- 
road company before it may exercise such privilege shall file its elec- 
tion to that effect with the township clerk within five days after the 
decision of the trustees is filed, and in case such election is filed the 
applicant shall within ten days thereafter pay to the township clerk 
for the use of the railroad company, the cost of constructing the 
drainage improvement through its property, in addition to the amount 
that may be allowed as damages, and when the railroad company 
shall have completed the improvement through its property in ac- 
cordance with such specifications it shall be entitled to demand and 
2 



18 IOWA DRAINAGE LAWS §§ 1960-1965 

receive from the township clerk such cost. If the railroad company 
shall fail to so construct the improvement for a period of thirty 
days after filing its election so to do, the applicant may proceed to do 
so and may have returned to him the cost thereof deposited with the 
township clerk. [33 G. A., eh. 117, § 3.] [22 G. A., ch. 96, § 9; 20 
G. A., ch. 188, § 9.] 

Sec. 1960. Repairs. In case any dispute shall thereafter arise 
as to the repair of any such drain, the same shall be determined 
by said trustees upon application in substantially the same manner 
as in the original construction thereof. [22 G. A., ch. 96, § 10.] 
[20 G. A., ch. 188, § 10.] 

Sec. 1961. Penalty for obstructing. Any person who shall dam 
up, obstruct or in any way injure any ditch or drain so constructed, 
shall be liable to pay to the person owning or possessing the swamp, 
marsh or other low lands, for the draining of which such ditch or 
ditches have been opened, double the damages that shall be sus- 
tained by the owner, and, in case of a second or subsequent offense 
by the same person, treble such damages. [C. '73, § 1227.] 

Sec. 1962. Connecting drains. When any water course or nat- 
ural drainage line crosses the boundary line between two adjoining 
land owners, and both parties desire to drain the land "along such 
water course or natural drainage line, but are unable to agree as to 
the junction of the lines of drainage at the boundary line aforesaid, 
the township trustees shall have full power and authority, upon 
the application of either party, to hear and determine all questions 
arising between such parties, after giving due notice to each of the 
time and place of such hearing, and may render such decision thereon 
as to said trustees shall seem just. [22 G. A., ch. 9 6, § 4; 20 G. A., 
ch. 188, § 4.] 

Sec. 1963. Along highways. Any person shall have the right 
to go upon any public road to construct an outlet to a drain, but 
he shall leave the road in as good condition as it was before the 
drain was constructed, the question as to such condition to be de- 
termined by the supervisor of roads of the district where the work 
is done. [Same, § 5.] 

Sec. 1964. Drains across highways. When any water course or 
natural drain crosses any public road in the state, and the adjoining 
or abutting land owner wishes to cross said road with an under- 
ground tiled drain, he shall notify the road supervisor having super- 
vision over the road to be crossed, in writing, specifying the depth 
of drain and size of tile to be used in crossing said road, and give 
the road supervisor twenty days' time to construct said underground 
drain. [21 G. A., ch. 55, § 1.] 

Sec. 1965. Supervisor shall construct. When the road supervisor 
receives said written notice, he shall order said drain constructed 
across said road, and pay for the tile and construction of the same 
out of any money or fund in his hands. [Same, § 2.] 



§§ 1966-1970 IOWA DRAINAGE LAWS 19 

Sec. 1966. Construction by owner. If the supervisor fails to 
construct said drain within twenty days' time, then the abutting or 
adjoining land owner may go upon the road and construct the same 
across said road, and he shall receive pay for constructing the same, 
including tile used in crossing said road, out of any money or fund 
belonging to such road district; provided he shall leave the road 
in as good condition as it was before the drain was constructed. 
[Same, § 3.] 

DRAINAGE OF COAL LANDS OR LEAD OR ZINC MINES. 

Sec. 1967. Damages assessed. Any person or corporation owning 
or possessing any land underlaid with coal, who is unable to mine 
the same by reason of the accumulation of water in such mine, may 
drain the same through, over or under the surface of land belonging 
to another person, and if such person or corporation and the owner 
of the land cannot agree as to the amount of damages that will be 
sustained by such owner, the parties may proceed to have the neces- 
sary right of way condemned and the damages assessed in the man- 
ner provided for taking private property for works of internal im- 
provement. [C. '73, § 1228.] 

Sec. 1968. Compensation. Any person or corporation who by 
machinery, such as engines or pumps, or by making drains or adit 
levels, or in any other way, shall rid any lead or zinc-bearing min- 
eral lands or lead or zinc mines of water, thereby enabling the miners 
and the owners of mineral interest in said lands to make them pro- 
ductive and available for mining purposes, shall receive one tenth 
of all the lead and zinc mineral taken from said lands as compensa- 
tion for said drainage. [31 G. A., ch. 82, § 1; C. '73, § 1229.] 

Sec. 1969. Setting apart. The owners of the mineral interest in 
said lands, and persons mining upon and taking lead or zinc min- 
eral from said lands, shall jointly and severally set apart and de- 
liver from time to time, when demanded, the said one-tenth part of 
the mineral taken from said lands to the person or corporation en- 
titled thereto, and the owners of the mineral interest therein shall 
allow the party entitled to such compensation and his agents at all 
times to descend into and examine said mines, and to enter any build- 
ing occupied for mining purposes upon any of said lands, and ex- 
amine and weigh the mineral taken therefrom. [31 G. A., ch. 82, 
§ 2; C. '73, § 1230.] 

Sec. 1970. Penalty. Upon the failure or refusal of any owner 
of the mineral interest in said lands, or of any person taking the 
mineral therefrom, to comply with the provisions of the preceding 
section, the person or corporation entitled to said compensation may 
recover the value of said mineral. And if it shall appear that the 
defendant obstructed the plaintiff in the exercise of the right to 
examine such mines, and to weigh such mineral, or concealed or 



20 IOWA DRAINAGE LAWS §§ 1971-1975 

secretly carried away any mineral taken from them, the court shall 
render judgment for double the amount proved to be due from such 
defendant. [C. '73, § 1231.] 

Sec. 1971. Notice to smelters. The person or corporation entitled 
to said drainage compensation may at any time leave with any smel- 
ter of lead or zinc mineral in this state a written notice, stating that 
said person or corporation claims of the persons named in said no- 
tice the amount to which said person or corporation may be entitled, 
which notice shall have the effect of notices in garnishment, and 
also authorize the said smelter to retain, for the use of the person 
entitled thereto, the one-tenth part of the mineral taken from said 
land and received from the person named in said notice. The pay- 
ment or delivery of the one-tenth part of the mineral taken from 
any of said lands by any one of the persons whose duty it is hereby 
made to pay or deliver the same, shall discharge the parties liable 
jointly with him, except liability to contribute among themselves. 
[31 G. A., ch. 82, § 3; C. '73, § 1232.] 

Sec. 1972. Right of way. Any person or corporation engaged as 
aforesaid in draining such mines and lead or zinc-bearing mineral 
lands, when he or they shall find it necessary for the prosecution of 
their work, shall have the right of way upon, over or under the 
surface of such mineral lands, and the contiguous and neighboring 
lands, for the purpose of conveying the water from said mineral 
lands by troughs, pipes, ditches, water races or tunnels, and the 
right to construct and use shafts and air holes in and upon the same, 
doing as little injury as possible in making said improvements. [31 
G. A., ch. 82, § 4; C. '73, § 1233.] 

Sec. 1973. Damages. If the said person or corporation engaged 
in draining as aforesaid, and the owner of any land upon which said 
right of way may be deemed necessary, can not agree as to the 
amount of damages which will be sustained by the owner by reason 
thereof, the parties may proceed to have the same assessed in the 
manner provided for taking private property for works of internal 
improvement. [C. '73, § 1234.] 

Sec. 1974. Consent of owners. The foregoing provisions shall 
not be construed to require the owners of the mineral interests in 
any of said lands to take mineral therefrom, or to authorize any 
other person to take the mineral from said lands without the con- 
sent of the owners. [C. '73, § 1235.] 

UNITED STATES LEVEES. 

Sec. 1975. Assistance by counties. In any case where the United 
States may have undertaken, or may hereafter undertake, the work 
of building a levee along or near the bank of a navigable stream 
forming a part of the boundary of this state, the board of super- 
visors of any and every county through which the same may pass 
shall have the right and power to aid in procuring the right of way 



§§ 1976-1978 IOWA DRAINAGE LAWS 21 

for the same, maintaining the same, and providing a system of internal 
drainage made necessary or advisable by the construction of such 
levee, whenever in their judgment such work will be conducive to the 
public health, convenience or welfare. [26 G. A., ch. 46, § 1.] 

Sec. 1976. Proceedings. That section nineteen hundred seventy- 
six of the code be and the same is hereby repealed and the following 
enacted in lieu thereof: 

"Proceedings as contemplated by the preceding section may be be- 
gun by filing with the county auditor a petition asking the board ot 
supervisors to form a levee or a drainage district, for any one or 
all of the purposes specified in section nineteen hundred seventy-five 
hereof. Said petition shall be signed by one or more owners of lands 
lying within the limits of such proposed district; the general limits 
of said district shall be given therein, and a plat of the proposed 
district shall be filed with • said petition. There shall be filed with 
said petition a bond, with sureties approved by the county auditor,' 
conditioned for the payment of all costs and expenses incurred, in 
case the board of supervisors shall refuse to grant the prayer or 
the petition." [31 G. A., ch. 83, § 1; 26 G. A., ch. 46, § 2.] 

Sec. 1977. Commission — appointment of— qualifications — report. 

At their next regular session held after the filing of such petition, or 
at a special session called for the purpose, the board of supervisors 
shall, if the foregoing provisions have been complied with, appoint 
a commission of three disinterested freeholders of the county, one 
of whom shall be, if practicable, a competent civil engineer or sur- 
veyor. This commission shall, after being duly sworn, proceed to ex- 
amine the lands within such proposed district, lay out the work re- 
quired, and make an estimate of the probable cost of the same. They 
shall make a full report to the board of supervisors, and may recom- 
mend that such district be formed as prayed, or that it be enlarged 
or diminished, as in their judgment will best subserve the general 
good and promote the general welfare. [31 G. A., ch. 83, § 2; 26 
G. A., ch. 46, § 3.1 

Sec. 1978. Notice. Upon the filing of the report of the commis- 
sioners, the county auditor shall fix a time, not less than twenty 
days thereafter, when the board of supervisors will proceed to take 
final action on the petition. At least ten days' notice of such hearing 
shall be given to each owner of land lying within such proposed dis- 
trict, as shown by the transfer books in the auditor's office. Such 
notice shall be over the hand and seal of the county auditor, shall 
state in brief the substance of the petition, the recommendation of 
the commissioners, and the time when the board of supervisors will 
proceed to a hearing on the same. This notice shall be served by 
the sheriff, if the person named can be found in the county, but, if 
the sheriff shall return that any such person can not be found in 
the county, the notice shall then be served by posting two copies 
thereof at least fifteen days before the time fixed for the hearing, one 
to be posted at the front door of the court house, and the other at 



22 J OWA DRAINAGE LAWS §§1979-1980 

some public place in the township within which such lands are situ- 
ated, and within the limits of such proposed drainage district; a copy 

flL t w, 1Ce ' WHh aU attidaVit ° f the postin S of the same, to be 
filed with the county auditor before the hearing; provided, however, 

^1„ T 1C L S n ° tlCe may be ack »°wledged in the manner pro- 

n f LI™ ♦ SerV1C6 ° f ^ ° rigillal n0tice ' and substituted service 
of such notice may be made under the circumstances and in the 
manner provided for substituted service of an original notice. [26 
tj. A., ch. 46, § 4.] 

Sec. 1979. Hearing. That section nineteen hundred seventy-nine 
ot the code be repealed and the following enacted in lieu thereof: 

"At the time named, or at such other time to which the board of 
supervisors may adjourn the matter, they shall proceed with the 
Hearing, at which any interested parties may appear, either in per- 
son or by counsel, and be heard, and may file written pleadings. 
The board shall hear and determine the matter, and if they determine 
against the formation of such district, they shall dismiss the pro- 
ceedings at the cost of the petitioners. If they shall decide to form 
such levee or drainage district, they shall proceed to fix the boun- 
daries of the same, and their finding shall be entered upon their 
records. The finding and the report of the commissioners shall be 
competent evidence at the hearing above provided for, but shall not 
be conclusive." [31 G. A. ch. 83, § 3; 26 G. A., ch. 46, § 5.] 

Sec. 1980. Appeal. Any person aggrieved by such action of the 
board of supervisors may, within twenty days after such action is 
taken, appeal to the district court of the county in which such lands 
are situated, where such appeal shall be heard on its merits re- 
gardless of technicalities, and appeal may be taken from the district 
to the supreme court, but under and subject to the restrictions now 
imposed by law upon appeals generally. The appeal to the district 
court shall be taken by serving notice of such appeal on the county 
auditor and the three persons first named among the signers to the 
petition specified in section nineteen hundred and seventy-six hereof. 
If the appeal is taken by the petitioners, notice of such appeal shall 
be served on the county auditor and any three of the successful re- 
monstrants, if there be so many, but on all if they be less than three. 
Upon service of notice of such appeal, the county auditor shall file 
with the clerk of the district court a copy of the petition, written 
objections filed by the parties complaining, or complained against, 
and of the action taken by the board of supervisors, all certified by 
him; these may constitute the pleadings, and the clerk of the district 
court shall docket the same, as in case of any other action brought, 
entitling the same in the names of the three first signing the peti- 
tion, on behalf of all, and against the remonstrants who are success- 
tul or who appeal, as the case may be. Such appeal, however, shall 
not interfere with the board of supervisors in the prosecution of the 
work, unless- the same shall have been taken by not less than one- 
naif of the acreage lying within the limits of such proposed district 



§§ 1981-1983 



IOWA DRAINAGE LAWS 23 



but if so taken by not less than one-half such acreage, then the 
board of supervisors shall so enter upon their records, and shall also 
enter an order suspending all proceedings pending the final disposi- 
tion of such appeal. [26 G. A., ch. 46, § 6.] 

Sec. 1981. Work carried on — land condemned. After entering 
the order as provided in section nineteen hundred seventy-nine hereof, 
unless further proceedings are suspended as provided in section nine- 
teen hundred eighty hereof, the board of supervisors shall proceed 
and adopt such plan or system as in their judgment is proper and 
best under all the circumstances, and cause the work to be done, 
causing such ditches to be dug, channels opened, embankments 
erected, fills made, and such other work done as in their judgment 
will most efficiently promote the general good and the public welfare. 
They shall have power, in the manner now provided by law, chapter 
four of title ten of this code, to condemn any land which they deem 
it necessary to take or use in the prosecution of such work, includ- 
ing any that may be required to aid the United States in completing 
such levee, the costs and expenses of which shall be paid out of the 
drainage fund pertaining to such district as hereinafter provided. In 
the doing of this work the board of supervisors shall have power 
to employ such help and assistance as they deem necessary, and to 
fix compensation for the same. All the work to be done which shall 
involve an estimated expenditure of five hundred dollars or over shall 
be let by contract, after advertising the same, once each week, for 
three weeks in some newspaper of general circulation published in 
the county, to the lowest bidder who shall furnish satisfactory secur- 
ity for the performance of the contract: provided, however, that the 
board of supervisors may reject all bids, and do the work themselves 
whenever in their judgment, the work can be so done at a substan- 
tial saving. [31 G. A., ch. 9, § 17; 26 G. A., ch. 46, § 7.] 

Sec. 1982. Costs assessed. That section nineteen hundred eighty- 
two of the code be repealed and the following enacted in lieu thereof: 

"If said district is established, the entire costs and expenses in- 
curred under this chapter shall be assessed against and collected from 
the lands lying within such district, by the levy of a rate upon the 
assessable value of the land within such district, sufficient to raise 
the required sum, provided that where the proposed improvement is 
for drainage only the board may, in their discretion, classify the 
land within such district and graduate the tax thereon, as provided 
in chapter sixty-eight of the laws of the thirtieth general assembly. 
When the board decides to make such classification, they shall pro- 
ceed in the manner set forth in section twelve of said chapter sixty- 
eight, and the commissioners shall each be allowed three dollars 
per day." [31 G. A., ch. 83, § 4; 26 G. A., ch. 46, § 8.] 

Sec. 1983. Collection of tax. The assessment required under sec- 
tion nineteen hundred and eighty-two hereof shall be made by the 
board of supervisors at the time of levying general taxes, after the 
work has been authorized, and the same shall be entered on the 



24 IOWA DRAINAGE LAWS §§ 1984-1985 

records of the board of supervisors, then entered on the tax books 
by the county auditor as drainage taxes, and shall be collected by 
the county treasurer at the same time, in the same manner, and 
with the same penalties, as general taxes; and if the same is not paid 
he shall sell all such lands upon which such assessment remains 
unpaid, at the same time, and in the same manner, as is now by 
law provided for the sale of lands for delinquent taxes, including all 
steps up to the execution and delivery of the tax deed for the same. 
The land owners shall take notice of and pay such assessments, with- 
out other or further notice than such as is provided for in this 
chapter. The funds realized from such assessments shall constitute 
the drainage fund, as contemplated in this chapter, and shall be 
disbursed on warrants drawn against that fund by the county auditor, 
on the order of the board of supervisors. [26 G. A., ch. 46, § 9.] 

Sec. 1984. Annual installments. That section nineteen hundred 
eighty-four of the code be repealed and the following enacted in lieu 
thereof: 

"If the proposed improvement is the maintenance of a levee, the 
amount collected in any one year shall not exceed fifty mills on the 
dollar of the assessment valuation, which said assessment shall be 
levied at a level rate on the assessable value of the said lands, ease- 
ments and railroads within the district. If the amount necessary 
to pay for the improvement, under section nineteen hundred eighty- 
two hereof, exceed said sum, it shall be levied and collected in annual 
installments. For all other improvements, the board shall levy a 
rate sufficient to pay for the same, and may, at their discretion, 
make the same payable in annual installments of ten or less." [32 
G. A., ch. 93, § 1; 31 G. A., ch. 83, § 5; 26 G. A., ch. 46, § 10.] 

Sec. 1985. Bonds. If the entire amount required under this chap- 
ter cannot be collected in one year, the board of supervisors of such 
county shall have the power to issue drainage bonds for all which 
cannot thus be provided for in one year, in substantially the manner 
and form as provided in section nineteen hundred fifty-three, chapter 
two, title ten of this code, such issue to be determined upon by them 
before the levy, and an amount sufficient to pay the interest on such 
bonds shall be estimated and included in the assessment. If the 
amount of money required for the improvement under the provisions 
of this chapter cannot be collected in one year, or if the board of 
supervisors in their discretion deem it advisable that the taxes shall 
be paid in installments, or in case it becomes necessary to expend an 
extraordinary sum for the preservation of the levee in case of an 
emergency, the board of supervisors of the county shall have the 
power to issue bonds for all which cannot thus be provided for in 
one year in substantially the manner and form provided in section 
twenty-eight of chapter sixty-eight of the laws of the thirtieth gen- 
eral assembly and acts amendatory thereto, and «all acts and proceed- 
ings in relation thereto shall conform therewith, except that bonds 
issued in anticipation of taxes for the maintenance of a levee shall 



§§ 1985-a-1988 IOWA DRAINAGE LAWS 25 

not exceed, five years' taxes and shall be due in six years from the 
date of issue. [32 G. A., ch. 93, § 3; 26 G. A., ch. 46, § 11.] 

Sec. 1985-a. Claim for repairs. Whenever a levee or drainage 
■district is organized, the board or boards of supervisors, as the case 
may be, shall have power and authority to audit and allow claims 
for money and labor expended in the preservation of said levee prior 
to and since the organization of the said district, all sums so allowed 
to be payable from the levee or drainage fund. The said board or 
boards shall also have full power and authority to make an equitable 
adjustment of and credit for any taxes paid for repairing the levee 
where the same has been heretofore levied and collected in any 
manner by said board or boards of supervisors under any prior 
proceedings. [32 G. A., ch. 93, §4.] 

Sec. 1986. Cost of maintaining. The board of supervisors shall 
have the right and power to keep up and maintain any such levee, 
ditches, drains, or system of drainage, either in whole or in part, 
established under the preceding sections of this chapter, as may in 
their judgment be required, and to levy the expense thereof upon 
the real estate within such drainage district as herein provided for, 
and collect and expend the same; provided, however, that no such 
work which shall impose a tax exceeding fifty mills on the dollar 
on the assessable value of the lands within the district shall be 
authorized by them, unless the same is first petitioned for and author- 
ized in substantially the manner required by this chapter for the 
inauguration of new work. [34 G. A., ch. 85, § 1.] [32 G. A., ch. 
93, § 2; 31 G. A., ch. 83, § 6; 26 G. A., ch. 46, § 12.] 

Sec. 1987. Districts. The petitioners who proceed under section 
nineteen hundred and seventy-six hereof may ask that the lands 
described in the petition be formed into more than one drainage 
district, and, whether they do so or not, the board of supervisors 
shall have the right and power to arrange said lands, or the lands 
which they shall finally determine to bring within the provisions 
of this act, into two or more districts, the- .boundaries of which 
shall be so fixed as will, in the judgment of the board, tend to a 
more equitable and just apportionment of the burdens to be im- 
posed. It shall be the duty of the commissioners provided for in 
section nineteen hundred and seventy-seven hereof to report whether, 
in their judgment, there should be more than one such district formed, 
and to make their plans and estimates according to such districts as 
they recommend. [26 G. A., ch. 46, § 13.] 

Sec. 1988. Apportionment of cost. In case more than one such 
district is created as provided in section nineteen hundred and eighty- 
seven hereof the board of supervisors shall require separate accounts 
to be kept of the costs and expenses incurred in each, making an 
equitable apportionment of such as is not susceptible of exact division, 
and the lands in each drainage district shall be liable to assessment 
for the costs and expenses incurred in such district only. [26 G. A., 
ch. 46, § 14.] 



26 IOWA DRAINAGE LAWS §§ 1989-1989-al 

The statute plainly contemplates that after a principal improvement has been 
made, other improvements subordinate thereto may be established in districts 
which may include portions of the district created for the principal improvement. 
Laurence v. Board of Supervisors, 151—182, 131 N. W. 8. 

Sec. 1989. Through two or more counties. That section nineteen 
hundred eighty-nine of the code, 1897, be and the same is hereby 
repealed and the following enacted in lieu thereof: 

"The boards of supervisors of any two or more adjoining counties 
where a government levee has been constructed, or partly constructed 
by the government and partly by other means, may carry on the work 
provided for in this chapter concurrently, provided that they first 
agree upon a plan or system and a basis of an equitable apportion- 
ment of the work to be done and the share of the cost and expense 
of the same to be borne by each of said counties; or when said 
levee has been built and separate districts have been heretofore formed 
the boards of supervisors may unite said districts into one district, 
but before said districts can be so united each board of supervisors, 
acting separately, must by resolution vote in favor of such consoli- 
dation and upon said separate votes being favorable the said levee 
districts shall be consolidated into one district and thereafter the 
same • shall be governed in all respects as now provided, except all 
action governing the new district shall be by the boards of super- 
visors acting jointly." [34 G. A., ch. 86, § 1.] [26 G. A., ch. 46, 
§ 15.] 

ESTABLISHMENT OF DRAINAGE DISTRICTS. 

Sec. 1989-al. Board of supervisors to establish drainage district. 

The board of supervisors of any county shall have jurisdiction, power 
and authority at any regular, special or adjourned session, to estab- 
lish a drainage district or districts, and to locate and establish levees, 
and cause to be constructed as hereinafter provided any levee, ditch, 
drain or watercourse, or to straighten, widen, deepen or change any 
natural watercourse, in such county, whenever the same will be of 
public utility or conducive to the public health, convenience or wel- 
fare, and the drainage of surface waters from agricultural lands 
shall be considered a public benefit and conducive to the public 
health, convenience, utility and welfare. [30 G. A., ch. 68, § 1.] 

By the term "agricultural lands" which is used in the provision for special 
assessments for public ditches, the legislature meant to designate generally 
those various and well-known bodies of land lying within the state which, owing 
to location and surface conditions, habitually collect and retain surface waters 
to such an extent as to presently unfit them for agricultural purposes. Sisson 
v. Board of Supervisors, 128-442, 104 N. W. 454. 

A drainage district is not a corporation and cannot be defendant in an appeal 
with reference to the allowance of damages. Clary v. Woodbury County, 135- 
488, 113 N. W. 330. 

A board of supervisors has no authority to allow damages to land in an- 
other county where the district is entirely within the limits of the county in 
which it is established. Ibid. 

The drainage of a district is distinctively a local enterprise undertaken solely 
for the benefit of the particular neighborhood, the expense of which is to be 
borne by lands within a prescribed area, and the county is not liable for the 
mistakes or neglect of officers to whom the organization, management and taxa- 
tion of the district are intrusted. Canal Const. Co. v. Woodbury County, 140— 
526, 121 N. W. 556. 



§ 1989-a2 IOWA DRAINAGE LAWS 27 

The provisions of this statute and those amendatory thereof are independent 
of previous statutory amendments on the same subject. Pricliard v. Board of 
Supervisors, 150-565, 129 N. W. 970. 

The action of the board in determining - the propriety of forming a district 
for the purpose of draining surface water from agricultural lands is largely 
legislative in character. Ibid. 

The proceedings to establish a drainage district may be instituted under this 
section instead of under code § 1940. Hoyt v. Broxon, 153-324, 133 N. W. 905. 

It is evident that the provisions of this section and those following do not 
relate solely to submerged land or those entirely unfit for use. Lyon v. Sac 
County, 155-367, 136 N. W. 324. 

Under evidence, held that the character of the land within the drainage district 
was such that the board of supervisors had authority to establish a drainage 
district. Mittman v. Farmer, 162-364. 

Sec. 1989-a2. Proceedings — bond — survey. Whenever a petition 
signed by one or more of the landowners whose lands will be affected 
by, or assessed for the expenses of, the proposed improvements, shall 
be filed in the office of the county auditor setting forth that any 
body or district of land in the county, described by metes and bounds, 
or otherwise, so as to convey an intelligible description of such lands, 
is subject to overflow or too wet for cultivation, and that the public 
benefit or utility, or the public health, convenience or welfare will 
be promoted by draining, ditching, tiling or leveeing the same, or 
by changing a natural watercourse, and setting forth therein the 
starting point, route and terminus and lateral branches, if necessary, 
of the proposed improvement, and there is filed therewith a bond, in 
amount and with sureties to be approved by the county auditor and 
conditioned for the payment of all costs and expenses incurred in 
the proceedings in case the supervisors do not grant the prayer of 
said petition, the board shall at its first session thereafter, regular, 
special or adjourned, appoint a disinterested and competent engineer, 
who shall give bond to the county for the use and benefit of the 
proposed levee or drainage district, if it be established, in amount 
and with sureties to be approved by the county auditor and condi- 
tioned for the faithful and competent performance of his work, and 
place a copy of the petition in his hands and he shall proceed to 
examine the lands described in said petition and any other lands 
which would be benefited by said improvement or necessary fn the 
carrying out of said improvement, and survey and locate such drain 
or drains, ditch or ditches, improvement or improvements, as may 
be practicable and feasible to carry out the purposes of the petition 
and which will be of public benefit or utility or conducive to public 
health, convenience or welfare. He shall make return of his pro- 
ceedings to the county auditor, which returns shall set forth the start- 
ing point, the route, the terminus or termini of the said ditch or 
ditches, drain or drains, or other improvements, together with a plat 
and profile showing the ditches, drains or other improvements, and the 
course and length of the drain or drains through each tract of land, 
together with the number of acres appropriated from said tract for 
construction of said improvement, and the elevation of all lakes, ponds 
and deep depressions in. said district, and the boundary of the pro- 
pose district, so as to include therein all lands that will be benefited 



28 IOWA DRAINAGE LAWS §1989-a2 

by the proposed improvements, and the description of each tract of 
land therein and names of the owners thereof as shown by the trans- 
fer, books in the auditor's office, together with the probable cost, and 
such other facts and recommendations as he may deem" material. The 
board of supervisors may at any time recall the appointment of any 
engineer made under the provisions of this act, if deemed advisable 
to do so, and select another to act in his place. That the ditches or 
drains herein provided for shall so far as practicable be surveyed and 
located along the general course of the natural streams and water- 
courses or in the general course of natural drainage of the lands of 
said district, but where it will be more economical or practicable such 
ditch or drain need not follow the course of such natural streams, wa- 
tercourses, or course of natural drainage, but may straighten, shorten 
or change the course of any natural stream, watercourse or general 
course of drainage. Whenever any such ditch or drain crosses any 
railroad right of way it shall when practicable be located at the place 
of the natural waterway across such right of way unless said railroad 
company shall have provided another place in the construction of the 
roadbed for the flow of the water; and if located at the place provided 
by the railroad company, such company shall be estopped from after- 
wards objecting to such location on the ground that it is not at the 
place of the natural waterway. [34 G. A., ch. 88, § 1; 34 G. A., ch. 
87, § 1; 33 G. A., ch. 118, §§ 1, 2.] [32 G. A., ch. 95, § 1; 32 G. A., 
ch. 94, § 1; 31 G. A., ch. 85, § 1; 31 G. A., ch. 84, § 1; 30 G. A., 
ch. 68, § 2.] 

Petition : The only purpose of the petition is to bring to the board of super- 
visors the alleged desirability of the establishment of the drainage ditch and 
if the location, boundaries and starting point are described with sufficient de- 
finiteness to enable the board to determine whether the contemplated improve- 
ment is desirable and proper, it is sufficient. In re Drainage Dist. No. 3, 146- 
£64, 123 N. W. 1059. 

Under this statute, the petition need not be signed by the majority of the 
landowners residing in the district. Prichard v. Board of Supervisors, 150-565, 
129 N. W. 970. 

A petition is sufficient which describes the body or district of land to be in- 
cluded with sufficient definiteness to enable an engineer to ascertain precisely 
the land intended. While the board may require a petition to be made more 
specific, yet if the description does point out the land to be included, the sub- 
sequent proceedings thereon will not be without jurisdiction. Kelley v. Drainage 
Dist., 157 -, 138, N. W. 841. 

Bond : The petitioners are not liable for the expenses of the proceedings 
preliminary to the action of the board and therefore may properly be sureties 
on the bond. In re Drainage Dist. No. 3, 146-564, 123 N. W. 1059 ; In re Hay 
Drainage Dist. No. 23, 146-280, 125 N. W. 225. 

While the board may be justified in refusing to act if a bond is not filed, yet 
if the board does in fact act under the petition, any defect in the bond cannot 
be urged as a ground for questioning the validity of the act subsequently taken. 
In re Drainage Dist. No. 3, 146-564, 123 N. W. 1059. 

Engineer's report : Insufficiency of the report of the engineer may be a good 
ground for setting aside on appeal the action of the board in establishing the 
drainage district. In re Nishnabotna River Imp. Dist., 145-130, 123 N. W. 769. 

The return of the engineer should be made to the auditor and if the board has 
before it such return substantially as contemplated by the statute the require- 
ments of the statute have sufficiently been complied with to sustain subsequent 
action. In re Drainage Dist. No. 3, 146-564, 123 N. W. 1059. 



§ 1989-a2 IOWA DRAINAGE LAWS 29 

If the report is filed before notice is given the fact that it is subsequently 
withdrawn from the files will not defeat the jurisdiction of the board in further 
proceedings. Ibid. 

It is not necessary that the engineer appointed personally do all the work 
necessary in making, the surveys and plans. He may, to some extent at least, 
depend upon the reports and actions of others who assist. Prichard v. Board 
of Supervisors, 150-565, 129 N. W. 970. 

Where the boundaries of the proposed district are fixed by the description 
of the land to be embraced therein, it is not necessary that a plat showing the 
entire boundaries and all the tracts of land included shall accompany such 
report. Lawrence v. Board of Supervisors, 151—182, 131 N. W. S. 

Under the present statutory provisions, it is not necessary that the prelim- 
inary report of the engineer show the elevations of the different tracts. Ibid. 

It is not necessary that in a preliminary report as to a general improve- 
ment, such as the shortening of a watercourse, the report of the engineer 
shall show what lateral drains will be necessary to drain the ponds and de- 
pressions. Ibid. 

It is for the board to determine for itself whether the cost of construction 
and amount of damages awarded make the improvement a greater burden than 
should be borne by land affected by the improvement, and therefore the report 
of the engineer as to the size of the ditch required is not controlling on the 
board as to the fixing of larger dimensions. Ibid. 

Under the record in a particular case, held that the engineer was not so far 
interested by reason of his previously expressed views in favor of a particular 
project, that he was incompetent to serve. Wallis v. Board, of Supervisors, 152— 
458, 132 N. W. 850. 

The law contemplates that the supervisors shall have the advantage of the 
best judgment of a competent engineer and this can be given only upon a 
thorough, actual examination and study of the proposed district in connection 
with such measurements as may be essential to an exact knowledge of the 
topography of the territory to be drained. Lyon v. Sao County, 155-367, 136 
N. W. 324. 

The manner in which the engineer discharges his duty, however, if improper, 
constitutes only an irregularity in the proceedings and not a jurisdictional defect. 
Ibid. 

It is not necessary that the engineer make return in his preliminary report 
of the levels or elevations of each tract or show how it would be affected by 
the improvement. Ibid. 

The design of the requirement as to an engineer's report is to render certain 
the several tracts included in the district and furnish the names of the owners 
for the purpose of serving notice on them. Kelley v. Drainage Dist., 157- — , 
138 N. W. 841. 

If the report of the engineer is sufficiently definite to enable the landowners 
to understand the system proposed and the injury which may result to any par- 
ticular tract and the board of supervisors to intelligently pass on the feasibilit;/ 
of the enterprise, this is all that is required. Munn v. Board of Supervisors, 
141 N. Wj 711. 

By exacting the elevations of all lakes, ponds and deep depressions to be 
given, it was not intended that levels be taken of all depressions to be drained 
but only of those depressions of such depth and area necessary to be taken into 
account in estimating the character and extent of the drainage system to be 
adopted. Ibid. 

Action of the board : After the report by the engineer the commissioners 
subsequently appointed under § 1989-al2 are to inspect and classify the lands 
benefited by the construction of the drainage district, and to justify the in- 
clusion of lands within such district, it should appear that they will derive some 
benefit, either in drainage directly or in being afforded an outlet for excess of 
waters to be drained, or in accessibility, or the like. If any land will not be so 
benefited then it should not be included or assessed. Zinser v. Board of Super- 
visors, 137-660, 114 N. W. 51. 



30 I0WA DRAINAGE LAWS § i 98 9. a 3 

land may be directly connected with the fl i£h r n dramS ° n SUCh 

564, 123 N. W. 1059. J * TG P™ n °0e Diet. No. 3, 140- 

altlougn^ mightn't Sf.T" ^ ^ bMn inClUded in a draina ^ <™ 

smaHer d LTcf wm ! t T* 6 ^ been d ^ ned by the establishment of a 

wmch may "bT ullT "^ , Pr ° P ° Sed diStHCt iS not a ^und of complaint 
wnich may be urged on appeal of owners of such land from the act of thl 

their compTatt T § ™? f^ The "^ ° f SUCh ° W " ^ 
their complaint, if any, to the assessment on their land when made Ibid 

Even during the pendency of an appeal from the action of the boa^dmav 
amend its records so as to show that the essential steps were in fact take? 
although not fully made of record. Ibid. 6U ' 

The statute authorizes the construction of a drainage ditch wWh + Q a 

i3o or N n w he 16 r tural course o£ a wat ™ e - * Zg ^ ~- '£*;: 

This section, as amended bv 2 2 PJ- a oii i -i <? r o 
natural watercourse for & Purposed public'diiin'. *££* *" ^^ °' * 

It is not required that the finding of the board as to the necessity of th* 
establishment of the district include also a finding that the district ta T subje ? 
to overflow and too wet for cultivation and that the improvement wl I b con 
ducive to the public welfare. Hoyt v. Brown, 153-324, 133 N W 905 
• Th !f T^lZ lmS reference to lands of the same character as those described 
m code § 1952. It is not limited to lands which are submerged or entity unfit 
for use. Lyon v. Sac Comity, 155-367, 136 N. W 324 entirely unfit 

The boundary of the district is sufficiently indicated by specifying all «,«■ 
forty-acre tracts of land to be included therein. Ibid Ponying all the 

u It fi i t % not rp ^ ecessaril y erroneous to include in the district lands but slightly 
benefited. The extent of the benefit is to be taken into account in de ermSng 
the assessment. Munn v. Board of Supervisors, 141 N. W. 711. 

Sec. 1989-aS. Notice of hearing—approval of plan— fees and mile- 
age for serving notice. That the law as it appears in section nineteen 
hundred eighty-nine-a three of the supplement to the code, 1907 be 
repealed and the following substituted in lieu therefor: 

"Upon the filing of the return of the engineer, if the same recom- 
mends the establishment of the levee or drainage district the board 
of supervisors shall then examine the return of the engineer and if 
the plan seems to be expedient and meets with the approval of the 
board of supervisors, they shall direct the auditor to cause a notice to 
be given, as hereinafter provided; but if it does not appear to be ex- 
pedient and is not approved, the board of supervisors are hereby au- 
thorized to direct said engineer, or another engineer, selected by 
them, to report another plan. At any time prior to the establishment 
of the district, the plan may be amended, and as amended shall be 
conclusive, unless appealed from as provided in section nineteen hun- 
dred eighty-nine-a six of this chapter. When the plan, if any shall 
have been finally adopted by the board of supervisors, they shall or- 
der the auditor immediately thereafter to cause notice to be given to 
the owner of each tract of land or lot within the proposed levee or 
drainage district, as shown by the transfer books of the auditor's 
office, including railway companies having right of way in the pro 
posed district, and to each lien holder or incumbrancer of any land 



§ 1989-a3 IOWA DRAINAGE LAWS 31 

through which or abutting upon which the proposed improvement ex- 
tends as shown by the county records, and also to all other persons 
whom it may concern, including actual occupants of the land in the 
proposed district (without naming individuals), of the pendency and 
prayer of said petition, the favorable report thereon by the engineer 
and that such report may be amended before final action, the day set 
for hearing on said petition and report before the board of supervis- 
ors, and that all claims for damages must be filed in the auditor's of- 
fice not less than five days before the day set for hearing upon the 
petition, which notice shall be served, except as otherwise hereinafter 
provided, by publication thereof once each week for two consecutive 
weeks in some newspaper of general circulation published in the 
county, the last of which publications shall be not less than twenty 
days prior to the day set for hearing upon the petition, proof of such 
service to be made by affidavit of the publisher and filed with the 
county auditor; provided further, however, that when any resident, 
nonresident, corporation, railroad company, or other persons owning 
or having an interest in any land or property affected by the proposed 
improvement shall have filed with the county auditor of the county 
wherein such improvement is proposed, an instrument in writing, duly 
signed, and designating the name and postoffice address of his or its 
agent upon whom service of notice in *said matter shall be made, the 
county auditor shall, at least twenty days prior to the date set for 
hearing upon said petition, mail a true copy of said notice in a reg- 
istered letter addressed to the person or agent so designated in said 
written instrument, as aforesaid. Proof of such service of said notice 
shall be made by affidavit of said county auditor and filed by him in 
said matter in his said office on or before the date of the hearing upon 
the petition, and such service shall be in lieu of all other service of 
notice to such residents, nonresidents, corporations, railroad com- 
panies or other persons. No notice need be served by the auditor 
upon any of the persons hereinbefore described who shall file with 
said auditor a statement in writing signed by him entering his appear- 
ance at said hearing and waiving any additional notice. If, at the 
date set for the hearing before the board of supervisors, it should 
appear that any person entitled to notice, as provided in this section, 
has not been served with notice for the time, or in the manner, as 
herein provided- the board may postpone said hearing and set another 
time for the same, and notice of such day of hearing may be served 
on such omitted parties in the manner and for the same length of 
time as provided for in this section; and by fixing such new day for 
hearing and by adjourning said proceedings to said time, the board of 
supervisors shall not be held to have lost jurisdiction of the subject 
matter of said proceeding, nor of any parties so previously served 
with notice. Personal service upon any of the parties above de- 
scribed in the manner and for the time required for service of original 
notices shall be sufficient and make publication of notice as to such 
persons unnecessary." [34 G. A., ch. 87, § 2; 33 G. A., ch. 118, § 3.] 
[32 G. A., ch. 94, § 2; 31 G. A., ch. 85, § 2; 30 G. A., ch. 68, § 3.] 



32 IOWA DRAINAGE LAWS § 1989-a3 

Action of board : A survey and approval of an engineer appointed for that 
purpose is essential for the authority of the board of supervisors to proceed to 
the establishment of the district, and upon appeal the court may pass upon the 
order appealed from, affirming or reversing it, and make such order for the 
direction of the board as may be proper in giving effect to the court's judgment 
or decree, but cannot undertake to establish a district varying or differing in a 
substantial degree from that which was under consideration in the order ap- 
pealed from. Hartshorn v. Wright County Dist. C%, 142-72, 120 N. W. 479. 

If the report is on file when notice is given a subsequent withdrawal of the 
report from the files will not defeat the jurisdiction of the board. In re Drain- 
age Dist. No. 3, 146-564, 123 N. W. 1059. 

The board in the exercise of its original jurisdiction cannot establish a dis- 
trict other than as planned and recommended by a competent engineer. Shaio 
v. Nelson, 150-559, 129 N. W. 827. 

While the plan, as reported or approved by the engineer, may be amended, as 
provided in 33 G. A., ch. 118, § 3, the statute contemplates the establishment of 
the district according to an amended plan as recommended and not otherwise 
than as so recommended. Ibid. 

As between two conflicting plans substantially suitable to accomplish the pur- 
pose intended, a court on appeal will sustain the action of the engineer and 
board in adopting the plan which they found to be preferable. Schunvaher v. 
Edington, 152-596, 132 N. W. 966. 

It is sufficient as to the boundaries of the district that the report show the 
tracts of land included. Munn v. Board of Supervisors, 141 N. "W. 711. 

The question whether the cost of the improvement is out of proportion to the 
benefits rests primarily in the discretion of the board. Ibid. 

The objection that the benefits to land proposed to be included in a drainage 
district will be slight is to be taken into account in the assessment of benefits, 
but it will not constitute a conclusive reason why such land shall not be 
included. Wallis v. Board of Supervisors, 152-458, 132 N. W. 850. 

Rights of landowners in an existing improvement may be subordinated to the 
making of another improvement. Ibid. 

Notice : The proprietor of a newspaper in which publication of notice is made 
is not disqualified from making affidavit of publication by being interested m 
the proceedings. In re Appeal of Lightner, 145-95, 123 N. "W. 749. 

The provisions of § 3, ch. 118, 33 G. A., substituted for this section, author- 
izing notice by publication, are not unconstitutional even as to actual residents 
of the county. Johnson v. Board of Supervisors, 148-539, 126 N. W. 153. 

The fact that no notice is required to be given to mortgagees of land within 
the proposed drainage district does not render the statute unconstitutional. 
Fitchpatrick v. Botheras, 150-376, 130 N. W. 163. 

The fact that notice is given without express direction of the board of super- 
visors to that effect and before the board has actually examined the return of 
the engineer, does not render subsequent proceedings thereunder invalid. In re 

County Drains, 151-47, 130 N. W. 152 ; Kelley v. Drainage Dist., 157 , 138 

N. W. 841. 

The voluntary appearance of the property owner by agent in the proceedings 
cures any irregularity of notice. Hoyt v. Brown, 153-324, 133 N. W. 905. 

Under this section as amended by 33 G. A., ch. 118, § 3, held that error in 
giving a middle name in the name of the owner of property specified in such 
notice was immaterial. Collins v. Board of Supervisors, 138 N. W. 1095. 

Objections : All objections not made before the board of supervisors are 
deemed to have been waived. Lyon v. Sac County, 155-367, 136 N. W. 324. 

Objections to the assessment of the drainage district should be presented to 
the board and if overruled should be urged on appeal. Kelley v. Drainage Dist., 
157 , 138 N. W. 841. 

This section is not invalid as prescribing too short a time of publication or of 
interval between the publication and hearing. Taylor v. Drainage District, 148 
N. W. 1040. 



§§ 1989-a4-1989-a5 IOWA DRAINAGE LAWS 33 

This omission of the notice to state that the engineer's report might be 
amended before final action is a mere defect, not affecting the fact of giving 
notice. Ibid. 

A notice requiring claims for damages to be filed on or before a certain date 
which is six days before the hearing is not inconsistent with the provisions of 
this act. Ibid. 

The establishment of drainage districts on notice by publication is not un- 
constitutional as authorizing the taking of property without due process of law. 
Goeppinger v. Board, 152 N. W. 58. 

Sec. 1989-a4. Claims for damages. Any person claiming damages 
as compensation for or on account of the construction of such im- 
provement shall file such claim in the office of the county auditor at 
least five days prior to* the day on which the petition has been set for 
hearing, and on failure to file such claim at the time specified, shall 
be held to have waived his rights thereto; provided, however, that it 
shall not be necessary to file claims covering value of land appropriat- 
ed for right of way for construction of proposed improvements. [34 
G. A., ch. 88, § 2.] [30 G. A., ch. 68, § 4.] 

The owner of land in another county than that in which the ditch is established 
cannot make a claim for damages. Clary v. Woodbury County, 135—488, 113 N. 
W. 330. 

A drainage ditch constructed in accordance with statutory provisions does not 
constitute an incumbrance within the ordinary warranty against incumbrances 
in a subsequent conveyance of such premises, even though no claim for damages 
has been made or allowed to the grantor. Stuhr v. Butter field, 151-736, 130 N. 
W. 897. 

Under this section as amended by 34 G. A., ch. 88, notice held sufficient as to 
one property owner, although a middle name was erroneously given, and further 
held that the notice being sufficient as to such owner, he could not subsequently 
interpose a claim for damages not presented before the board of supervisors. 
Collins v. Board of Supervisors, 138 N. W. 109 5. 

Sec. 1989-a5. Location — appraisers. The board of supervisors at 
the session set for the hearing on said petition, which session may be 
regular, special or adjourned, shall thereupon proceed to hear and de- 
termine the sufficiency of the petition in form and substance, which 
petition may be amended as to form and substance at any time before 
final action thereon, and, if deemed necessary, the board may view 
the premises and if they shall find that such levee or drainage dis- 
tricts would not be for the public benefit or utility, nor conducive to 
the public health, convenience or welfare, they shall dismiss the pro- 
ceedings; but, if they shall find such improvement conducive to the 
public health, convenience or welfare or to the public benefit or util- 
ity and no claim shall have been filed for damages as provided in sec- 
tion four hereof, they may if deemed advisable locate and establish 
the same in accordance with the recommendations of the engineer, or 
they may refuse to establish the same as they may deem best; and at 
said hearing, the board may order the said engineer or a new engineer 
appointed by them if deemed advisable, to make further examination 
and report to said board as to said proposed improvement, and if they 
determine that further examination and report shall be made, or if 
any claims have been filed for damages, as provided in section four 
hereof, then the board of supervisors shall proceed no further than to 
determine the necessity of the levee or drainage districts and further 
3 



34 IOWA DRAINAGE LAWS § 1989-a5 

proceedings shall be continued to an adjourned, regular or special ses- 
sion, the date of which shall be fixed at the time of the adjournment; 
and the county auditor shall appoint three appraisers to assess such 
damages, one of whom shall be the engineer theretofore appointed as 
above provided, or, in case of his absence or inability to act, some 
other engineer, and two freeholders of the county who shall not be in- 
terested in, nor related to any party interested in the proposed im- 
provement. [34 G. A., ch. 88, § 3; 33 G. A., ch. 118, §§ 4, 5.] [31 
G. A., ch. 85, § 3; 31 G. A., ch. 84, § 2; 30 G. A., ch. 68 § 5.] 

The authority to pass upon the necessity of the improvement, determine its 
public character and fix the boundaries of the district is legislative rather than 
judicial in its nature and is intrusted, primarily at least, to the board of super- 
visors. The court should on appeal be very reluctant to interfere with the 
action of the board and should set aside its order on the ground that the ditch 
is not a work of public character or its cost a greater burden than the land 
benefited should bear only where the evidence is so clear as to render that con- 
clusion unavoidable. Temple v. Hamilton County, 134-706, 112 N. W. 174. 

A discretion is vested in the supervisors to determine whether the establish- 
ment of a drainage district would be for the public benefit or utility or con- 
ducive to the public health, convenience or welfare, and if damages are claimed, 
whether the cost of construction and amount of damages awarded is a greater 
burden than should be properly borne by the property benefited and if the super- 
visors determine that it is not advisable to establish the drainage district and 
make the proposed improvements their action is not subject to review by the 
courts. Denny v. Des Moines County, 143-466, 121 N. W. 1066. 

But the functions of the board in determining the sufficiency of the petition 
is judicial and its action in this respect is subject to review. Ibid. 

The wisdom and practicability of the proposed drainage scheme cannot con- 
stitutionally be left to the determination of a court whose jurisdiction is pro- 
vided for by the constitution. Ibid. 

The petition may be amended before the final action of the board and its 
action may be properly made to conform to the change in plans thus proposed. 
In re Hay Drainage Dist. No. 23, 146-280, 125 N. W. 225. 

The including of property within the boundaries of a district has been held 
to be an exercise of legislative power which the courts cannot review. How- 
ever this may be, lands which will be to some extent benefited may be included, 
although the benefit is different from that which will accrue to other lands 
included. Such difference may be taken into account in determining the amount 
of the assessment. Prichard v. Board of Supervisors, 150-565, 129 N. W. 970'. 

Where the board on final hearing approves the return of the engineer and 
orders the establishment of the district, that obviates any objection on the 
ground that such return was not examined by the board before notice was given. 
In re County Drains, 151-47, 130 N. W. 152. 

The necessity of bridges and approaches may be taken into account in esti- 
mating the damages to the property through which the ditch is constructed. 
Anderson v. Board of Supervisors, 154-497, 133 N. W. 653. 

The value of the land taken for the ditch may properly be considered. Ibid. 

It is not required that any record be made that the land referred to in the 
proceeding is subject to overflow or too wet for cultivation. It is sufficient 
that the board determine that the petition complies with the statutory require- 
ment in form and substance, that the improvement is necessary and will be 
conducive to the public health, convenience and welfare or to the public benefit 
or utility and that it is advisable. The establishment of the district necessarily 
determines that the land is of the character essential to authorize the improve- 
ment. Lyon v. Sac County, 155-367, 136 N. W. 324. 

A slight modification in the drain as recommended by the engineer may be 
made by the board. Munn v. Board of Supervisors, 141 N. W. 711. 



§ 1989-a6 



IOWA DRAINAGE LAWS 35 



Sec. 1989-a6. Assessment of damages — appeal. The appraisers 
appointed to assess damages shall proceed to view the premises and 
determine and fix the amount of damages to which each claimant is 
entitled, and shall place a valuation upon all acreage taken for right 
of way as shown by plat of engineer and shall, at least five days be- 
fore the date fixed by the board to hear and determine the same, file 
with the county auditor reports in writing showing the amount of 
damages sustained by each claimant. Should the report not be filed 
in time or should any good cause for delay exist the board may post- 
pone the time of final action on the subject and, if necessary, the 
auditor may appoint other appraisers. When the time for final action 
shall have arrived, and after the filing of the report of the appraisers, 
said board shall consider the amount of damages awarded in their 
final determination in regard to establishing such levee or drainage 
district, and if in their opinion the cost of construction and the 
amount of damages awarded is not excessive and a greater burden 
than should be properly borne by the land benefited by the improve- 
ment, they shall locate and establish the same, and they shall there- 
upon appoint said engineer, or if deemed advisable, may appoint a 
new engineer as a commissioner, who shall make a permanent survey 
of said ditch as so located, showing the levels and elevations of each 
forty-acre tract of land and shall file a report of the same with the 
county auditor together with a plat and profile thereof and shall 
thereupon proceed to determine the amount of damages sustained by 
each claimant, and may hear evidence in respect thereto and may in- 
crease or diminish the amount awarded in respect thereto, and any 
party aggrieved may appeal from the finding of the board in estab- 
lishing or refusing to establish the improvement district or from its 
finding in the allowance of damages to the district court by filing no- 
tice with the county auditor at any time within twenty days after such 
finding, at the same time filing a bond with the county auditor, ap- 
proved by him, and conditioned to pay all costs and expenses of the 
appeal unless the finding of the district court shall be more favorable 
to the appellant or appellants than the finding of the board, which ap- 
peal shall be tried in the district court as an ordinary proceeding, ex- 
cept that when the appeal is from the order of the board in establish- 
ing or refusing to establish the levee or drainage district, it shall be 
tried in equity and the appearance term shall be the trial term; tne 
finding of the court in relation to the establishment of or refusal to 
establish the levee or drainage district shall be certified by the clerk 
of the board of supervisors, who shall enter an order in harmony 
therewith and proceed accordingly. If the appeal is from the amount 
of damages allowed, the amount ascertained in the district court shall 
be entered of record, but no judgment shall be rendered therefor. 
The amount thus ascertained shall be certified by the clerk of said 
court to the board of supervisors, who shall thereafter proceed as if 
such amount had been by it allowed the claimant as damages. If the 
appeal is from the action of the board in establishing or refusing to 
establish said drainage district, the court shall enter such order as 
may be proper in the premises, and the clerk of said court shall cer- 



36 IOWA DRAINAGE LAWS § 1989-a6 

tify the same to the board of supervisors, who shall proceed there- 
after in said matter in accordance with the order of the court. How 
the costs shall be distributed among the litigants and against whom 
the same shall be taxed shall rest in the discretion of the trial court. 
[34 G. A., ch. 88, § 4: 33 G. A., ch. 118, § 6.] [32 G. A., eh. 94, § 
3; 31 G. A., ch. 85, § 4; 30 G. A., ch. 6§, § 6.] 

Damages awarded : The question of damages is to be finally determined at 
the time the ditch is located and established and an appeal may be taken within 
ten days thereafter. Clary v. Woodbury County, 135-4S8, 113 N. W.. 330. 

A property owner who has failed to file his claim within the time required by 
statute cannot have equitable relief. Collins v. Board of Supervisors, 138 N. 
W. 1095. 

The damages are to be estimated as of the date of the construction of the 
ditch and not of the date of the establishment of the district. Gish v. Gastner 
etc. Drainage Dist, 138-155, 113 N. W. 757. 

Whether the point of time selected for the comparison of values in determin- 
ing the damages should be that of the establishment of the district or that of 
the construction of the ditch, is a question not ordinarily material in the prac- 
tical result to be obtained. In re Joint Drainage Dist., Ryg v. Board of Super- 
visors, 141 N. W. 939. 

Engineer's permanent survey : The report of the engineer is not controlling 
as to the size of the ditch which the board may order. If, in its discretion, it 
deems a larger and more expensive ditch justified by the benefit to be derived. 
it may in that respect depart from the engineer's report. Laurence v. Board 
of Supervisors, 151-182, 131 N. W. 8. 

It is not necessary in the preliminary report to show levels and elevations of 
each tract. Ibid. 

If the data contained in the report in connection with the plat and profile 
gives the information exacted by statute and such report is accepted by the 
board as sufficiently specific, the court will not interfere with the action of 
the board on appeal. A survey made by the engineer is in a sense preliminary 
and intended for use in ascertaining the feasibility of the improvement. Munn 
v. Board of Supervisors, 141 N. W. 711. 

Board's final action : The fact that the appraisers do not follow the statute 
in making their classifications and assessments does not defeat the jurisdiction 
of the board. The provisions as to their method of procedure are directory only. 
In re Appeal of Lightner, 145-95, 123 N. W. 749. 

Where the record does not show the procedure of the appraisers in this re- 
spect the defect may be cured by amendment of the return. Ibid. 

The determination of the relation of benefits to expenses may be considered 
by the district court in determining the validity of the action of the board in 
including certain lands within the proposed district. In re Drainage Dist. No. 3, 
146-564, 123 N. W. 1059. 

Where the record of the proceedings of the board showed a continuous session 
from day to day, attested at the end of the record of the proceedings for each 
day with the words "board adjourned," held that such record did not indicate 
an adjournment sine die prior to the session at which the improvement was 
ordered, it being apparent that these words were used only to indicate an inter- 
vening recess of the board. Hoyt v. Brown, 153-324, 133 N. W. 905. 

Appeal : The county cannot appeal from the action of the district court in 
setting aside an order of the board of supervisors for the reassessment of the 
expenses of constructing the ditch. Yockey v. Woodbury County, 130-412, 106 
N. W. 950. 

The contractor who is entitled to be paid out of the funds collected by the 
assessment may appeal, as he has an interest in such fund. Ibid. 

This section expressly authorizes an appeal from the refusal of the board of 
supervisors to establish a drainage district. Zinser v. Board of Supervisors, 
137-660, 114 N. W. 51. 



§ 1989-a6 IOWA DRAINAGE LAWS 37 

Notice : Where the proceedings involve a joint action of the boards of two 
or more counties notice of appeal must be served on the county auditor of each 
county. In re Appeal of Head, 141-651, 118 N. W. 884. 

A concession that notice of appeal was served upon the county auditor is 
sufficient to show that notice was filed with him. Canal Const. Co. v. Wood- 
bury County, 146-526, 121 N. W. 556. 

Acceptance of service of notice of appeal by the county auditor and the filing 
of a notice with him is sufficient. Shaw v. Nelson, 150-559, 129 N. W. 827. 

Filing a notice of appeal with the county auditor is sufficient without the 
service of notice upon the petitioners for the drainage improvement. Hender- 
son v. Board of Supervisors, 153-283 and 470, 133 N. W. 671. 

Bond : If the bond on appeal be defective only, the approval thereof by the 
auditor cannot be collaterally attacked. Shaw v. Nelson, 150-559, 129 N. W. 827. 

Court's action : The court on appeal from the action of the board of super- 
visors in establishing a district in accordance with the recommendations of the 
engineer has no authority to establish a district substantially different from 
that recommended in the report and approved by the board. Hartshorn v. 
Wright County Dist. Ct., 142-72, 120 N. W. 479. 

This section does not authorize the introduction of additional testimony in the 
district court for the purpose of determining whether or not there is some 
district which should be established although not petitioned for or surveyed. 
The action of the court should be limited to some district which is under con- 
sideration by the board and it could make no order which the board could not 
have made on the same record. Ibid. 

A court should on appeal be reluctant to interfere with and set aside a finding 
on an order of the board establishing the drainage district. In re Nishnabotna 
River Imp. Co., 145-130, 123 N. W. 769. 

If before the final action of the court on appeal the record of the board is so 
corrected as to show that the essential steps have been taken the proceedings 
of the board will be sustained. In re Drainage Dist. No. 3, 146-564, 123 N. W. 
1059. 

The court may exercise a reasonable discretion regarding the admission of 
evidence as to the damages, and held in a particular case that the admission 
of evidence was not erroneous. Larson v. Webster County, 150-344, 130 N. 
W. 165. 

Qn the trial of the appeal, the district court acts simply as an appellate 
tribunal. It has no original jurisdiction, and parties not residents of the county 
cannot intervene, although they may be affected by the establishment of the 
ditch. Prichard v. Board of Supervisors, 150-565, 129 N. W. 970. 

The appellants must be confined to the objections presented by them before the 
board of supervisors. They cannot, in the district court, present new grounds 
for defeating the proposed improvement. Ibid. 

Costs : The provision as to payment of all costs and expenses of the appeal 
does not contemplate the taxation of attorney's fees against the defeated 
appellant. In re County Drains, 151-47, 130, N. W. 152. 

It is not necessary that the notice of appeal to be filed with the county auditor 
be marked "filed", as the filing is a ministerial act and such notice is filed 
when it is left with the proper officer and by him received to be kept on file, 
but where such notice is served on the auditor as an original notice, and an 
unsigned copy of the notice left with him, the copy where it may be treated 
as filed must be regarded as the notice and an unsigned notice is insufficient. 
The filing of the original of the notice with the clerk is ineffective and cannot 
be referred to, to correct defects in the copy left with the auditor. The filing 
of the notice of appeal with the auditor is jurisdictional, and neither consent 
nor special appearance on appeal to object to the jurisdiction confers jurisdiction. 
Bedford v. Board of Supervisors, 162-588, 144 N. W. 301. 

A county will not be enjoined from filling a culvert as a part of a drainage 
system, at the suit of a party aggrieved by such action, as the remedy was by 
objection before the board of supervisors and a claim for damages, and * if not 
satisfactory, an appeal. Elliott v. Woodbury Co., 162-473. 



38 IOWA DRAINAGE LAWS §§ 1989-a7-1989-a8 

Sec. 1989-a7. Damages — by whom paid — division into districts- 
engineer. The amount of damages finally determined by the board In 
favor of any claimant or claimants shall- be required to be paid in the 
first instance by the parties benefited by the said levee or drainage 
district, or secured to be paid by sufficient bond to be fixed and ap- 
proved by the county auditor, and aft&r such damages shall have been 
paid or secured as aforesaid, the board shall divide said improvement 
into suitable sections, numbering the same consecutively from the 
source or beginning of the improvement downward towards its outlet 
and prescribe the time within which the improvement shall be com- 
pleted and appoint a competent engineer to have charge of the work 
of construction thereof, who shall be required before entering upon 
the work to give a bond to the county for the use and benefit of the 
levee or drainage district to be approved by the auditor in such sum 
as the board may fix, conditioned for the faithful discharge of his 
duties. [33 G. A., eh. 118, § 7.] [30 G. A., ch. 68, § 7.] 

The provision that the damages are to be secured to be paid upon such terms 
and conditions as the county auditor may deem just and proper does not render 
the statute unconstitutional. Sisson v. Board of Supervisors^ 128-442, 104 N. 
W. 454. 

The damages are to be fixed by the testimony as of the date of the construc- 
tion of the ditch and not of the date of the esablishment of the district, and the 
evidence may therefore relate to the diminution of value which would result 
from the construction of the ditch at the date of the trial, the district not yet 
having been finally established. Gish v. Costlier etc. Drainage Dist.j 136-155, 
113 N. W. 757. 

The engineer is not authorized to modify the plans adopted by the board 
without its approval so as to entitle the contractor to additional compensation. 
Monaghan v. Vanatta, 144-119, 122 N. W. 610. 

Sec. 1989-a8. Letting work — notice — bids. The board shall cause 
notice to be given by publication, once each week, for two consecutive 
weeks in some newspaper published in the county wherein such im- 
provement is located and such additional publication elsewhere as 
they may direct, of the time and place of letting the work of con- 
struction of said improvement, and in such notice they shall specify 
the approximate amount of work to be done in each section and the 
time fixed for the commencement and completion thereof; and when 
the estimated cost of said improvement exceeds fifteen thousand dol- 
lars the board shall make additional publication for two consecutive 
weeks in some contracting journal of general circulation, of such no- 
tice as they may prescribe, and they shall award contract or contracts 
for each section of the work to the lowest responsible bidder or bid- 
ders therefor, bids to be submitted, received and acted upon separately 
as to the main drain and each of the laterals, exercising their own 
discretion as to letting such work as to the main drain as a wnoie, 
or as to each lateral as a whole, or by sections as to both main drain 
and laterals, and reserving the right to reject any and all bids and 
readvertise the letting of the work. Each person bidding for such 
work shall deposit in cash or certified check a sum equal to ten per 
centum of the amount of the bid, not in any event however to exceed 
ten thousand dollars, said deposit to be returned to him if his bid is 



§ 1989-a9 IOWA DRAINAGE LAWS 39 

not successful, and if successful to be retained as a guarantee only of 
his good faith in entering on said contract. The successful bidder 
shall be required to execute a bond with sufficient sureties in favor of 
the county for the use and benefit of the levee or drainage district in 
an amount equal to twenty-five per centum of the estimated cost of the 
work so let, or he may deposit such amount in cash with the auditor 
as security for the performance of his contract and for the payment as 
they become due of all just claims for labor performed and material 
used in the completion of said contract, and upon the execution of 
such bond, or the making of such deposit, the deposit originally made 
with his bid shall be returned to him. [36 G. A. (S. F. 411, § 1.)] 
[34 G. A., ch. 89, § 1.] [34 G. A., eh. 87, § 3.] [33 G. A., ch. 118, 
§ 8.] [31' G. A., ch. 85, § 5.] [31 G. A., ch. 9, § 30.] [30 G. A., 
ch. 68, § 8.] 

Sec. 1989-a9. Monthly estimates — payment. The engineer in 
charge of the construction shall furnish the contractor monthly esti- 
mates of the amount of work done on each section and upon filing the 
same with the auditor, he shall draw a warrant in favor of such con- 
tractor, or deliver to him improvement certificates, as the case may be, 
for eighty .per centum of the value of the work done according to the 
estimate, and when said improvement is completed to the satisfaction 
of the engineer in charge thereof and so certified by him to the board 
and approved by it, the auditor shall draw a warrant in favor of said 
contractor upon the levee or drainage fund, or deliver to him improve- 
ment certificates, as the case may be, for the balance due. [30 G. A., 
ch. 68, § 9.] 

No authority is conferred on the board of supervisors to pass on the estimates 
preceding the final report of the engineer. It is only when the work is com- 
pleted that the board is authorized to approve or disapprove it and if approved 
to authorize the auditor to issue warrants for the balance due. Monaghan v. 
Yanatta, 144-119, 122 N. W. 610. 

The board has the right to assume that the work is being done in accordance 
with the contract and is not estopped from insisting on final settlement that 
work for which compensation is claimed was not authorized by the contract. 
Ibid. 

The contractors cannot be deprived of their rights through the failure of the 
engineer to act, nor should they be defeated by his fraud or through his collusion. 
Littell v. Webster County, 152-206, 132 N. W. 426. 

Where there is no provision for acceptance mile by mile or otherwise in por- 
tions as the work proceeds, intermediate estimates of the engineer are not 
binding in the final settlement. Ibid. 

Where fraud and collusion are not made to appear, the contractor cannot 
maintain an action of mandamus to compel the engineer and board of super- 
visors to approve the performance of his contract and levy an assessment there- 
for. Federal Contracting Co. v. Board of Supervisors, 153-362, 133 N. W. 765. 

In such an action of mandamus, the contractor is not entitled to recover on 
quantum, meruit. Ibid. 

But held that although the refusal of a mandamus by the lower court was 
proper, the supreme court might in its discretion remand the case for further 
proceedings in order to enable the appellant, by amending his pleadings and 
securing trial by appropriate methods to determine whether he had a right 
under his contract or upon quantum meruit. Ibid. 

It is only when the engineer has certified that the improvement has been 
completed to his satisfaction that the board of supervisors is called upon to 



40 IOWA DRAINAGE LAWS §§ 1989-al0-1989-all 

approve or disapprove, and if it approve the county auditor is authorized to 
issue warrants for the final payment of twenty per cent, of the contract. Bars 
v. Sawyer, 141 N. W. 319. 

Sec. 1989-alO. Failure to perform work — penalty — completion of 
work. If any person to whom any portion of said work shall have 
been let shall fail to perform the same according to the terms speci- 
fied in his contract, then the cash deposited by him shall be forfeited 
to the county, or recovery may be had in an action on the bond by the 
county, for the benefit of the levee or drainage district, for the dam- 
ages sustained and the work may be relet by the board in the manner 
hereinbefore provided; or the board may cause the uncompleted work 
to be done, paying therefor out of the balance of the contract price 
not theretofore paid over to the contractor, and if the expenses of so 
completing the work exceed such balance of the contract price, then 
the board of supervisors may cause an action to be brought in the 
name of the county in behalf of said district, or in the name of the 
board of supervisors and of the said district, for the recovery of the 
amount of such excess from the contractor and his bondsmen. [3 5 
G. A., ch. 156, §2; 33 G. A., eh. 118, § 9.] [30 G. A., ch. 68, § 10.] 

Sec. 1989-all. Changes in dimensions — notice — objections — ap- 
peal. That the law as it appears in section nineteen hundred eighty- 
nine-a eleven of the supplement to the code, 1907, be and the same is 
hereby repealed and the following enacted in lieu thereof: 

If, after the establishment of said district, and before the comple- 
tion of the drainage improvements therein, it shall become apparent 
that a levee or drain should be enlarged, deepened or otherwise 
changed or that a change or alteration in the location should be made 
for the better service thereof, said board may by resolution authorize 
such change or changes in the said improvement as the engineer shall 
recommend; provided that, whenever any change or changes are 
made either under this section or under any other section of this chap- 
ter, all persons whose land shall be taken or whose assessments shall 
be increased thereby shall first have been given like notices as pro- 
vided in section nineteen hundred eighty-nine-a three of this chapter, 
and shall have like opportunity to file claims for damages, as pro- 
vided for in section nineteen hundred eighty-nine-a four of this chap- 
ter, or file objection to such assessment as provided in section nine- 
teen hundred eighty-nine-a twelve of this chapter, as the case may be, 
and like opportunity to appeal from the action of the board as pro- 
vided in section nineteen hundred eighty-nine-a six of this chapter, 
or section nineteen hundred eighty-nine-a fourteen of this chapter, as 
the case may be. [34 G. A., ch. 87, § 4; 33 G. A., ch. 118, § 10.1 
[32 G. A., ch. 94, § 4; 30 G. A., ch. 68, § 11.] 

A contractor cannot recover for extra work except as authorized by modifica- 
tion of the contract made in accordance with these provisions. Monaghan v. 
Tanatta, 144-119, 122 N. W. 610. 

Section 10 of Ch. 118, Laws 33 G. A., as hereby amended, prescribes the pro- 
cedure to be taken by a party aggrieved on account of the action of a county 
in constructing a drainage system, and the county will not be enjoined from 
filling a culvert in an embankment, as plaintiff's remedy is by objections before 



§ 1989-al2 IOWA DRAINAGE LAWS 41 

the board of supervisors and a claim for damages and appeal if not satisfied 
by the action of the board. Elliott v. Woodbury County, 1B2-473, 143 N. W. 82f>. 
The board of supervisors in establishing drainage ditches may make changes 
in ditches, drains, or laterals and may eliminate a culvert even though the 
board had been enjoined from interfering with the culvert before the drainage 
district was established. The remedy of a party complaining of such change 
is to appear before the board and object to the plan, and that being unavailing, 
to file and establish his claim for damages. Ibid. 

Section applied. Humboldt County v. Ward Bros., 145 N. W. 49. 

Sec. 1989-al2. Assessment of costs and damages — apportionment. 

When the levee or drainage district or other improvement herein pro- 
vided for shall have been located and established as provided for in 
this act, or when it shall be necessary to cause the same to be re- 
paired, enlarged, reopened or cleared from any obstruction therein, 
unless such repairs, reopening or clearing of obstructions can be paid 
for as hereinafter provided, the board shall appoint three commis- 
sioners, one of whom shall be a competent civil engineer and two of 
whom shall be resident freeholders of the state not living within the 
levee or drainage district and not interested therein or in a like ques- 
tion, nor related to any party whose land is affected thereby; and 
they shall within twenty days after such appointment begin to per- 
sonally inspect and classify all the lands benefited by the location and 
construction of such levee or drainage district, or the repairing or re- 
opening of the same, in tracts of forty acres or less according to the 
legal or recognized subdivisions in a graduated scale of benefits, to be 
numbered according to the benefit to be received by the proposed im- 
provement; and they shall make an equitable apportionment of the 
costs, expenses, costs of construction, fees and damages assessed for 
the construction of any such improvement, or the repairing or reopen- 
ing of the same, and make report thereof in writing to the board of 
supervisors. In making the said estimate the lands receiving the 
greatest benefit shall be marked on a scale of one hundred and those 
benefited in a less degree shall be marked with such percentage of 
one hundred as the benefit received bears in proportion thereto. This 
classification when finally established shall remain as a basis for all 
future assessments connected with the objects of said levee or drain- 
age district, unless the board, for good cause, shall authorize a re- 
vision thereof. In the report of the appraisers so appointed, they 
shall specify each tract of land by proper description and the owner- 
ship thereof as the same appears on the transfer books in the auditor's 
office, and the auditor shall cause notice to be served upon each per- 
son whose name appears as owner and also upon the person or per- 
sons in actual occupancy of any such land in the time and manner 
provided for the establishment of a levee or drainage district, which 
notice shall state the. amount of special assessments apportioned to 
such owner, upon each tract or lot, the day set for hearing the same 
before the board of supervisors and that all objections thereto must 
be made in writing and filed with the county auditor on or before noon 
of the day set for such hearing. When the day set for hearing shall 
have arrived, the board of supervisors shall proceed to hear and de- 



42 IOWA DRAINAGE LAWS § 1989-al2 

termine all objections made and filed to said report and may increase, 
diminish, annul or affirm the apportionment made in said report or 
in any part thereof as may appear to the board to be just and equit- 
able; but in no case shall it be competent to show that the lands 
assessed would not be benefited by the improvement, and when such 
hearing shall have been had the board shall levy such apportionment 
so fixed by it upon the lands within such levee or drainage district; 
and all installments of the tax shall be levied at that time, and shall 
bear interest at six per cent per annum from that date; provided 
that if the owner of any parcel of land, lot or premises against 
which any such levy shall have been made and certified, shall, within 
twenty days from the date of such assessment, promise and agree in 
writing filed in the office of the county auditor that in consideration 
of his having the right to pay his assessments in installments he will 
not make any objection of illegality or irregularity as to the assess- 
ment of benefits or levy of such taxes upon or against his property, 
but will pay said assessment, then said taxes levied against said 
land, lot or premises of such owner shall be payable without interest, 
as follows: one third of the amount of said assessment at the time 
of filing the above agreement; one third within ten days after the 
engineer in charge of said drainage improvement shall file a certificate 
in the office of the county auditor that said improvement is one half 
completed, and the remaining one third within ten days after the said 
improvement shall have been accepted by the board of supervisors, 
and if said installments are not paid as above provided, the failure 
to pay any installment shall cause the whole sum to become due 
and payable at once with interest at the rate of one per cent per 
month from the date of filing said agreement, and such assessments 
shall thereupon be collected as other taxes on real estate, which rate 
may be later reduced to correspond with the rate specified in the cer- 
tificates or bonds, as the case may be. Provided, however, that no 
deferred installment of the amount assessed, as between vendor and 
vendee, mortgagor and mortgagee, shall become a lien upon the prop- 
erty against which it is assessed and levied, until the thirty-first day 
of December of the year next preceding that in which it is due and 
payable; and in case the board of supervisors shall increase said ap- 
portionment, service of notice thereof shall be made upon the owner 
of such tract or lot of land as shown by the transfer books in the 
auditor's office, in the same manner in which original notices are re- 
quired to be served, where such owner is a resident of the county, and 
in case such owner is a nonresident of the county such notice as to 
him shall be served on the actual occupant of the tract or lot of 
land; provided that in case any railroad company shall be affected by 
such increased apportionment said notice shall be served upon the 
station agent of the said railroad company nearest the proposed im- 
provement. If the first assessment made by the board of supervisors 
for the original cost or for repairs of any improvement as provided 
in this act is insufficient, the board may make an additional assess- 
ment and levy in the same ratio as the first for either purpose. [36 G. 



§ 1989-al3 IOWA DRAINAGE LAWS 43 

A. (H. F. 565, §1.)] [34 G. A., ch., 87, § 5.] [33 G. A., ch. 118, 
§ 11.] [30 G. A., ch. 68, § 12.] 

Notice to landowner of intention of board of supervisors to make an addi- 
tional assessment to meet deficit is not necessary. Plummer v. Pitt, Co. Treas., 
149 N. W. 878. 

In a particular case, held that the court on appeal properly considered special 
conditions' which were urged as a reason why appellant's assessments should be 
reduced. Monson v. Board of Supervisors, 149 N. W. 624. 

Assessments draw interest from the date of the original assessment by the 
board, whether the amount is fixed by the board of supervisors or by the court 
on appeal. Rystad v. Buena Vista Co., 152 N. W. 364. 

Invalidity of an assessment of benefits cannot be predicated on the fact that 
the appraisers first classified the land as "dry", "low", "wet", and "swampy" 
in order to more intelligently mark the lands as herein provided, nor on the 
fact that one assessment covered both the main drain and branches. Obe v. 
Board, 151 N. W. 453. 

The fact that the landowner has already constructed a system of drainage 
prior to the construction of the public drain should be given due consideration 
in assessing benefits for the public drain. Ibid. 

Approximate accuracy is all that can be hoped for in an assessment of bene- 
fits. Evidence reviewed and held to show assessment was not excessive. Ibid. 

In determining the assessment of benefits for a drainage improvement, due 
consideration should be given (a) to the system of drainage already provided 
by the landowner, (b) the relative amount of land actually drained by the 
new improvement, and (c) the extent the improvement affords outlet for lateral 
drainage. In the instant case, held, the assessment should be reduced one-third. 
Harriman v. Board, 151 N. W. 468. 

Sec. 1989-al3. Levy and collection of tax — warrants. In esti- 
mating the benefits as to the lands not traversed by said improve- 
ment they shall not consider what benefits such lands will receive 
after some other improvements shall have been constructed, but only 
the benefits which will be received by reason of the construction of 
the improvement in question as it affords an outlet for the drainage 
of such lands, or brings an outlet nearer to said lands or relieves the 
same from overflow. Said tax shall be levied upon the lands of the 
owners so beneftfe^d in the ratio aforesaid and collected in the same 
manner as other taxes for county purposes, and the funds so col- 
lected shall be kept as a separate fund and shall be paid out only 
for purposes properly connected with such improvement on the or- 
der of the board of supervisors; provided, however, that warrants 
drawn upon the funds of any drainage district shall be accepted by 
the county treasurer in payment of drainage assessments levied upon 
any lands in that district owned by the person to whom the said 
warrants were issued, and when the amount of the warrant exceeds the 
amount of the assessment, the treasurer shall cancel the said war- 
rant, and give the holder thereof a certificate for the amount of the 
overplus, upon the presentation of which certificate to the county 
auditor he shall file it, and issue a new warrant for the amount of 
the overplus, and charge the treasurer therewith; and such certificate 
is transferable by delivery, and will entitle the holder of the new- 
warrant, made payable to his order, and bearing the original number, 
preceded by the words, "Issued as unpaid balance due on warrant 

number " [35 G. A., ch. 153, § 1, 33 G. A., ch. 118, § 12.] 

[30 G. A., ch. 68, § 13.] 



44 IOWA DRAINAGE LAWS § 1989-al4 

There is no statutory obstacle to the assessment of land for improvement in a 
subsidiary district after it has already been assessed for the principal improve- 
ment. Laurence v. Board of Supervisors,. 151-182, 131 N. W. 8. 

Where a new drain relieves a main drain in the system as previously con- 
structed by furnishing- an additional outlet, it is of some benefit to all the lands 
tributary thereto. Kelley v. Drainage Dist!; 157 , 138 N. W. 841. 

Sec. 1989-al4. Appeal — drainage record — counsel — establishment 
rescinded — new hearing. An appeal may be taken to the district 
court from the order of the board fixing the assessment of benefits 
upon the lands in the same manner and time as herein provided for 
appeals from the assessment of damages, and such appeal may be 
taken from the order of the board of supervisors increasing the ap- 
portionment within twenty days after the completed service of, notice 
of such increased apportionment in the same manner as herein provided 
for appeals in assessment for damages, whether objection was made to 
the report of the commissioner or not. The appeal herein provided for 
shall be tried in the district court as an action in equity and the ap- 
pearance term shall be the trial term; and when several appeals are 
taken and pending in the district court by land owners of the same 
drainage district whose lands have been assessed by the board, the court 
may, in its discretion, order the consolidation of such cases, and try the 
same as one cause of action. When any appeal is taken from any 
order of the board made in any drainage proceeding coming before it 
for action, it shall be the duty of the board to 1 employ counsel to repre- 
sent the interests of the drainage district affected by said appeal on tne 
trial thereof in the appellate courts and the expense thereof shall be 
paid out of the drainage fund of such district. In all actions or ap- 
peals involving or affecting the drainage district, the board of super- 
visors shall be a proper party for the purpose of representing the 
drainage district, and all interested parties therein, other than the 
adversary parties thereto, and the employment of counsel by the board, 
as authorized by this chapter, shall be for the purpose of protecting all 
the rights of the drainage district and interested parties therein other 
than the adversary parties thereto; in all appeals or actions adversary 
to the district, the appellant or complaining party shall be entitled the 
plaintiff, and the board of supervisors and drainage district it repre- 
sents, the defendants, and in all appeals or actions for or in behalf of 
the district, the board of supervisors and the drainage district it 
represents may sue as and be entitled the plaintiffs. When an appeal 
authorized by this chapter is taken, the county auditor shall forthwith 
make a transcript of the notice of appeal and appeal bond and trans- 
mit the same to the clerk of the district court, and the clerk shall 
docket the same upon payment by the appellant of the docket fee; 
and on or before the first day of the next succeeding term of the dis- 
trict court, the appellant shall file a petition setting forth the order 
or decision of the board appealed from and his claims and objections 
relating thereto; a failure to comply with these requirements shall be 
deemed a waiver of the appeal and in such case the court shall dismiss 
the same; it shall not be necessary for the appellee to file answer to the 
petition unless some affirmative defense is made thereto, but he may 



§ 1989-al4 IOWA DRAINAGE LAWS 45 

do so. The board shall provide a book to be known as the drainage 
record and the county auditor shall keep a full and complete record 
therein of all proceedings of the board relating to drainage districts. 
In any case where the decree is or has been entered setting aside the 
establishment of a drainage district for errors in the proceedings taken, 
and such decree becomes final, the board of supervisors shall rescind 
its order establishing the drainage district, assessing benefits, and 
levying- the tax based thereon, and shall also cancel any contract made 
for construction work or material, and may refund any or all assess- 
ments paid in. The board shall fix a new date for hearing, giving no- 
tice thereof by publication for two weeks and at the time so fixed, 
enter its order as to the establishment of the proposed district, and 
thereafter proceed as by law provided. [35 G. A., ch. 156, § 1; 34 G. 
A., ch. 87, § 6; 33 G. A., ch. 119, § 1; 33 G. A., ch. 118, § 13.] 
[32 G. A., ch. 95, § 2; 30 G. A., ch. 68, § 14.] 

Failure to record the joint action of two or more boards in each county will 
not effect the jurisdiction of the court on appeal. In re Appeal of Head, 141-651, 
118 N. W. 884. 

If the proceedings are simply erroneous as distinguished from illegal, the 
property owner's remedy is to file objections before the board, and in event of 
an adverse ruling to appeal to the district court as in equity proceedings. On 
appeal the property owner is confined to objections made by him before the board. 
In re Appeal of Lightner, 145-95, 123 N. W. 749. 

Service of notice and filing of bond as provided in code supp. § 1989-a6 are 
sufficient under this section to effect an appeal to the district court. An appeal 
from action of the district court to the supreme court may be effected by serv- 
ice of notice in the usual way on counsel representing the district in the district 
court. In re Appeal of Jenison, 145-215, 123 N. W. 979. 

On appeal the complaining party must be limited to the objections made before 
the board of supervisors. In re Hay Drainage Dist. No. 23, 146-280, 125 N. 
W. 225. 

The action of the trial court in sustaining the board of supervisors will not 
be reversed for merely technical objections to the proceedings. Laurence v. 
Board of Supervisors, 151-182, 131 N. W. 8. 

The remedy by appeal is exclusive and objections to the assessment are to 
be prosecuted in, that manner and not by an injunction in equity to restrain its 
enforcement. Hoyt v. Brown, 153-324, 133 N. W. 905. 

Before the amendment of this section by 34 G. A., ch. 87, § 6, it authorized 
a review of the action of the board of supervisors in raising an assessment as 
approved by the commissioners. Lyon v. Sac County, 155-367, 136 N. W. 32 4. 

Where the petition in an appeal proceeding such as contemplated by this sec- 
tion had been filed before the statute went into effect, held that a failure to 
comply with the requirements of the amendment (33 G. A., ch. 118 § 13) relating 
to the filing of petition should not be regarded as a waiver of such appeal. 
Arnold v. Board of Supervisors, 151-155, 130 N. W. 816. 

Under this section as amende* by 33 G. A., ch. 118, the provision as to filing 
a petition relates to the procedure and a failure to comply with such provision 
does not deprive the court of jurisdiction. The provision as to filing a petition 
is remedial and should be so construed. If the petition is filed within such 
time as to enable the court to properly proceed with the trial of the case, a 
motion to dismiss on the ground that the petition is not filed by the time re- 
quired by statute should be overruled. Elwood v. Board of Supervisors, 156-407, 
136 N. W. 709. 

A property owner who has voluntarily paid the amount of his assessment even 
under protest cannot subsequently maintain an appeal from such assessment. 
Collins v. Board of Supervisors, 138 N. W. 1095. 



46 IOWA DRAINAGE LAWS §§ 1989-al5-1989-al6 

The assessment as made by the board of supervisors and confirmed in the dis- 
trict court on appeal is presumed to be correct and equitable and the burden 
is upon the property owner appealing to the supreme court to show that it was 
made on an incorrect basis or was inequitable. It is not enough for him to 
show that it was in excess of the actual benefits to his land. Ibid. 

Where a stranger to the record of the board of supervisors served a notice of 
appeal from the assessment against specific la*hd and asserted therein her owner- 
ship of such land, held that she could not, in the district court, have a review 

of the assessment against other land. Bradford v. Board of Supervisors, 140 
N. W. 804. 

The appeal is triable in the supreme court as an equitable proceeding. Ibid. 

The findings of fact by the board of supervisors are conclusive and their action 
can be reviewed by the courts only on qtiestions of law and upon the question 
of the amount of benefit assessed, which, by the express terms of the statute, 
is reviewable on appeal. Chicago, B. & Q. R. Co. v. Board of Supervisors, (C. 
C.) 170 Fed. 665. j 

Under the evidence in a particular case, held that the assessments were not 
invalid as levied in excess of the benefits conferred or inequitable and unjust. 
In re Farley Drainage Dist., Pabbeldt v. Hamilton Co., 144-476, 123 N. W. 241. 

Attorney's fees are not a part of the taxable costs on the appeal. In re County 
Drains, 151-47, 130 N. W. 152. 

Notice of appeal in a particular case held sufficient. Hill Drainage Dist., No. 
115 v. Board of Supervisors, 162-182, 143 N. W. 991. 

The filing of a petition by an appellant on or before the first day of the term 
next succeeding the appeal is not jurisdictional ; the provision that unless it is 
so filed the appeal shall be dismissed is in the nature of a penalty ; and a dis- 
cretion rests in the lower court to refuse a dismissal, and such.. dismissal should 
be denied where the appellant has been diligent and files his petition within a 
reasonable time. Reichenbach v. Getty, 143 N. W. 842. 

Sec. 1989-al5. Obstructions — nuisance — abatement. That the law 
as it appears in section nineteen hundred eighty-nine-a fifteen of the 
supplement to the code, 1907, be and the same is hereby repealed and 
the following enacted in lieu thereof: 

'And ditch, drain or watercourse, which is now or hereafter may be 
constructed so as to prevent the surface and overflow water from the 
adjacent lands from entering the same,.. is hereby declared as a nuisance 
and may be abated as such. Any person, firm or corporation divert- 
ing, obstructing, impeding or filling up, without" legal authority, any 
ditch, drain or watercourse, or breaking down any levee established, 
constructed or maintained under any provision of law, shall be deemed 
guilty of a misdemeanor and punished accordingly." [35 G. A., ch. 
154, § 2.] [30 G. A., ch. 68, § 15.] 

Sec. 1989-al6. Subsequent proceedings — use of foimer surveys. 
In any proceedings heretofore or hereafter had for the establishment 
of a ditch, drain, levee or the changing pf a natural watercourse, or 
the establishment of a levee or drainage district where an engineer 
has been appointed and has made a complete survey, return and 
plat thereof and for any reason the improvement has been abandoned 
and the proceedings dismissed and afterwards proceedings are insti- 
tuted for the establishment of a levee or drainage district, or the 
changing [of] a natural watercourse, for the benefit or reclamation of 
the same territory surveyed in said former proceedings, or part there- 
of, or the same with territory additional thereto, the engineer shall 
use the return, levels, surveys, plat and profile made in said former 



§§ 1989-al7-1989-al8 IOWA DRAINAGE LAWS 47 

proceedings, or so much thereof, as may be applicable; and in case the 
cost of said returns, levels, surveys, plat and profile made in said 
former proceedings have been paid for by the former petitioners or 
their bondsmen, then a reasonable amount shall be allowed said peti- 
tioners or bondsmen for the use of the same. [33 G. A. ch. 118, § 14.] 
[30 G. A., ch. 68, § 16.] 

Where proceedings with reference to a public ditch were abandoned at the 
instance of the contractor on account of doubt as to the constitutionality of the 
statute under which they were instituted, held that he was not entitled to do 
the work under new proceedings involving the construction of a ditch of a 
different character. Brown v. Board of Supervisors, 129-533, 105 N. W. 1019. 

Where the report of the engineer intelligibly indicates the relation of the new 
drain with that previously constructed and furnishes the board with the necessary 
data to enable it to proceed with the performance of its duties, it is sufficient. 
Kelley v. Drainage District, 157 , 138 N. W. 841. 

Sec. 19S9-al7. Kelevy. Where proceedings have been had for 
the establishment cf a ditch, drain, levee, change of natural water- 
course or the establishment of a drainage district under the law as 
heretofore existing and such improvement has been established and 
constructed and taxes levied upon the land benefited thereby, or upon 
any portion thereof for the cost of such improvement, and where 
the levy so made cannot for any reason be enforced, the board shall 
proceed as to all lands benefited by said improvement in the same 
manner as if the appraisement and apportionment of benefits had 
never been made; and they shall proceed in the manner hereinbefore 
provided, using as a basis the entire cost of such improvement, and in 
taxing up said benefits accounts shall be taken of the amount of tax, 
if any, that has been paid by those benefited and credit therefor shall 
be given accordingly. [30 G. A., ch. 68, § 17.] 

Special assessments are charged to the land because of the benefits attached 
thereto and are to be collected in the same way as ordinary taxes are collected. 
Howard v. Emmet County, 140-527, 118 N. W. 882. 

The county is not liable for neglect of its officers to enforce the assessment 
made in consequence of a relevy. Canal Const. Co. v. Woodbury County, 146- 
526, 121 N. W. 556. 

Sec. 1989-al8. Establishment and construction across railroad 
right of way. Whenever the board of supervisors shall have estab- 
lished any levee, or drainage district, or change of any natural water- 
course and the levee, ditch, drain or watercourse as surveyed and 
located crosses the right of way of any railroad company, the county 
auditor shall immediately cause to be served upon such railroad com- 
pany, in the manner provided for the service of original notices, a 
notice in writing stating the nature of the improvement to be con- 
structed, the place where it will cross the right of way of such com- 
pany, and the full requirements for its complete construction across 
such right way as shown by the plans, specifications, plat and profile 
of the engineer appointed by the board, and directing such company 
to construct such improvement according to said plans and specifica- 
tions at the place designated, across its right of way, and to build 
and construct or rebuild and reconstruct the necessary culvert or 



48 IOWA DRAINAGE LAWS § 1989-al8 

bridge where any ditch, drain or watercourse crosses its right of way, 
so as not to obstruct, impede or interfere with the free flow of the 
water therein, within thirty days from the time of .the service of such 
notice upon it; and upon receiving said notice it shall be the duty of 
such railroad company to construct the improvement across its right 
of way according to the plans and specifications furnished in said no- 
tice and to build and construct or rebuild and reconstruct the neces- 
sary culvert or bridge above mentioned and complete the same within 
the time specified in said notice; if such railroad company shall fail, 
neglect or refuse to do so within the time fixed in said notice the 
auditor shall cause the same to be done under the supervision of the 
engineer in charge of the improvement and such railroad company 
shall be liable for the cost thereof to be collected by the county in any 
court having jurisdiction; and the cost of constructing the improve- 
ment across the right of way of such company, not including the cost 
of building and constructing or rebuilding and reconstructing any 
necessary culvert or bridge when such improvement is located at the 
place of the natural waterway or place provided by the railroad com- 
pany for the flow of the water, shall be considered as an element of 
such company's damages by the appraisers thereof; and the cost of 
building and constructing or rebuilding and reconstructing any ne- 
cessary culvert or bridge when such improvement is located at the 
place of the natural waterway or place provided by the railroad com- 
pany for the flow of the water, shall be borne by such railroad com- 
pany without reimbursement therefor. The commissioners to assess 
benefits shall fix and determine the benefits to the property of the 
railroad company within the levee or drainage district and make 
return thereof with their regular return. Such special assessment 
shall be a debt due personally from the railroad company, and unless 
the same is paid by the railroad company as special assessment, it 
may be collected in the name of the county in any court having juris- 
diction. All other proceedings in relation to railroads shall be the 
same as provided for individual property owners within the drainage 
district. [33 G. A., ch. 118, § 15.] [32 G. A., ch. 95, § 3; 30 G. A., 
ch. 68, § 18, 19.] 

Railroad property is not included within the provisions of code supp. 1989-al2 
as to classification or notice. In re Johnson Drainage Dist., 141-380, 118 N. W. 
380. 

These statutory provisions do not contemplate that where the construction of 
the improvement necessitates the building of a new railroad bridge the entire 
cost of construction of such bridge is necessarily recoverable by the company 
as damages. Chicago & N. W. R. Co. v. Drainage Dist., 142-607, 121 N. W. 193. 

The expense of building or rebuilding a culvert or bridge over the ditch as con- 
structed is not an element of damage in determining the damages which may be 
assessed in favor of the railroad company in connection with its right of way. 
Drainage of that character is for the public use, convenience and welfare and the 
making of the improvement is within the police power of the state. The damages 
involved to the railroad company in being compelled to rebuild or enlarge its cul- 
verts and bridges is merely incidental. Mason City & Ft. D. R. Co. v. Board of 
Supervisors, 144-10, 121 N. W. 39. 

The cost of extending the ditch across the right of way and not of constructing 
or reconstructing culverts or bridges rendered necessary is the element of dam- 
age contemplated by the statute. Ibid. 



§ 1989-al9 IOWA DRAINAGE LAWS 49 

While the railroad company cannot have reviewed on appeal the action of 
the board in including its property within a drainage district, it may have re- 
viewed the assessment or apportionment of the costs with reference to its prop- 
erty. Chicago, M. <& St. P. R. Co. v. Monona County, 144-171, 122 N. W. 820. 

The description of the railroad right of waj' as a part of said described forty- 
acre tract is sufficiently definite. Ibid. 

These statutory provisions imposing their burden on railroad property are not 
unconstitutional, as the state has the right in the exercise of its police power to 
impose such expense or burden without the allowance of an equivalent by way 
of damages. Chicago, B. d Q. R. Co. v. Board of Supervisors, (C. C.) 170 Fed. 
665. 

This section, enacted by way of substitution for previous sections of the stat- 
ute on the same subject, is not applicable to a drainage ditch established and, 
in part, constructed before the change in the statute. Chicago, B. cG Q. R. Co. 
v. Board of Supervisors, (C. C. A.) 182 Fed. 291. 

A railroad company is not entitled to recover the expenses of building a new 
bridge over a public drainage ditch. Its damages on account of the establish- 
ment of the ditch will be confined to the value of the* easement across its right 
of way. Ibid. 

In a particular case held that the assessment of railroad property was not in 
substantial excess of the benefits derived therefrom in the way of betterment of 
the roadway and track and not out of proportion of the assessments of other 
land within the district. In re Johnson Drainage Dist., 141-380, 118 N. W. 3S0. 

Sec. 1989-al9. Construction across highway — interest on assess- 
ments. That section nineteen hundred eighty-nine-a nineteen of the 
supplement to the code, 19 07, be and the same is hereby repealed and 
the following enacted in lieu thereof: 

Whenever such levee, ditch, drain or change of any natural water- 
course crosses a public highway, necessitating the removal or the 
building or rebuilding of any bridge or bridges, the board of super- 
visors shall remove, build or rebuild such bridge or bridges, pay- 
ing the costs and expenses thereof from the county bridge fund. 
Whenever any highway within the levee or drainage district will be 
beneficially affected by the construction of any improvement or im- 
provements in such district, it shall be the duty of the commissioners 
appointed to classify and assess benefits to determine and return in 
their report the amount of benefit to such highway, and notice thereof 
shall be served upon the clerk of the township in which said highway 
is located, as provided in the case of an individual property owner. 
The township trustees or clerk of such township may file objections 
to such assessment in the time and manner provided in case of land- 
owners, and the trustees shall have the same right of appeal from the 
finding of the board with reference to the assessment on account of 
the benefits to such highway. One fourth of such assessment shall 
be paid by the county from the county road fund, or from the county 
drainage fund, and three fourths by the township. Such assess- 
ment may be paid by the township from its road fund, o : r out of a fund 
created for said purpose as provided in section fifteen hundred twenty- 
eight of the supplement of the code, 1907. The amount finally 
assessed for benefits to highways shall draw interest at the same rate and 
from the same time as the assessment against lands. [35 G. A., ch. 
157, § 1; 34 G. A., ch. 24, § 5; 33 G. A., ch. 118, § 16.] [30 G. A., Ch. 
68, § 20.] 
4 



50' IOWA DRAINAGE LAWS §§ 1989-a20-1989-a22 

The provisions of this act are mandatory, and the board of supervisors can be 
compelled by mandamus to erect a bridge where a drainage ditch crosses a high- 
way. Ruffcorn v. Chatbum, 147 N. W. 1110. 

Sec. 1989-a20. Construction on or along highway. Whenever a 
levee or drainage district shall have been established by the board 
and it shall become necessary or desirable that the levee, ditch, drain 
or improvement should be located and constructed within the limits of 
any public highway, on either or both sides and along the same, it 
shall be so' built as not materially to interfere with the public travel 
thereon; and the board of supervisors shall have power and authority 
to lay out and establish public highways along and upon any levee or 
embankment along ,any ditch or drain built under the provisions of 
this act, provided that when so established the same shall be worked as 
other highways and so as not to impair the levee, ditch or drain. 
[30 G. A., ch. 68, § 21*. ] 

Sec. 1989-a21. Control — repairs — cost. Whenever any levee or 
drainage district shall have been established and the improvement 
constructed as in this act provided, the same shall at all times "be 
under the control and supervision of the board of supervisors and it 
shall be the duty of the board to keep the same in repair and for 
that purpose they may cause the same to be enlarged, reopened, deep- 
ened, widened, straightened or lengthened for a better outlet, and they 
may change or enlarge the same or cause all or any part thereof to be 
converted into a closed drain when considered for the best interests 
of the public rights affected thereby. The cost of such repairs or 
change shall be paid by the board from the drainage fund of said levee 
or drainage district, or by assessing and levying the cost of such 
change or repair upon the lands in the same proportion that the origin- 
al expenses and cost of construction were levied and assessed, except 
where additional right of way is required or additional lands affected 
thereby, in either of which cases the board shall proceed as herein- 
before provided; provided, however, that if the repair is made neces- 
sary by the act or negligence of the owner of any land through which 
such improvement is constructed or by the act, or the negligence of 
his agent or employe, or if the same is filled and obstructed by the 
cattle, hogs or other stock of such owner, employe or agent, then the 
cost thereof shall be assessed and levied against the lands of such 
owner alone. [30 G. A., ch. 68, § 22.] 

Whether such enlargement of the outlet as contemplated by this section be 
effected by widening and deepening the existing ditch or excavating another 
parallel with it, or whether this be done by removing the tile and replacing it by 
that of larger size, or by laying another tile drain parallel with that already laid, 
can make no difference, for in either event the result is the enlargement of the 
outlet which is here authorized. Kelley v. Drainage Dist., 157 , 138 N. W. 841. 

Condemnation of land for a drainage improvement does not oust the power of 
the fence viewers to order the erection of line fences which will in no way inter- 
fere with the drainage plan. Barton v. Boie, 151 N. W. 1064. 

Sec. 1989-a22. Outlet for lateral drains— specifications. The 

owner of any land, lot or premises that have been assessed for the 
payment of the cost of the location and construction of any ditch, 



§-§ 1989-a23-1989-a24 IOWA DRAINAGE LAWS 51 

drain or watercourse as hereinbefore provided, shall have the right to 
use the ditch, drain or watercourse as an outlet for lateral drains from 
said land, lot or premises. In making connections with the drainage 
improvements provided for in this chapter, care must be taken to so 
protect the drain or drains where such connection is made as to pre- 
vent damage thereto by washing out the banks or by permitting soil 
or silt to be carried into the public improvement, and to this end the 
board of supervisors may make specifications as to the manner in 
which all such connections shall be made. [33 G. A., ch. 118, § 17.] 
[30 G. A., ch. 68, § 23.] 

Sec. 1989-aS3. Subdrainage districts. If any person who owns 
land within the drainage district which has been assessed for benefits 
and which is separated from the ditch, drain or watercourse for which 
it has been assessed, by the land of another or others, shall desire to 
ditch or drain his said land across the land of such other or others into 
such ditch drain or watercourse and shall be unable to agree with 
such other or others on the terms and conditions on which he may 
enter upon their lands and construct such drain or ditch, he may 
proceed in the manner in this section provided, and the ditch or drain 
which he shall construct or cause to be constructed shall be considered 
to be conducive to the public health, welfare, convenience and utility 
to promote which said drainage district was established. He may file 
his petition with the county auditor asking the board to establish 
a subdistrict within the limits of the original district for the purpose 
of securing more complete drainage, describing the lands to be affected 
thereby by metes and bounds or otherwise so as to convey an intelli- 
gible description of such lands; and the bond and all other proceed- 
ings shall be the same as herein provided for the establishment, for- 
mation and construction of original districts and improvement thereof, 
including the assessment of damages and the assessment of benefits 
and when established and constructed, it shall be and become a part 
of the drainage system of such drainage district and be under the 
control and supervision of the board of supervisors. [3 G. A., ch. 68, 
§ 24.] 

Lands may be assessed for an improvement in a subdistrict although they have 
previously been assessed for the main improvement. Laurence v. Board of Su- 
pervisors, 151-182, 131 N. W. 8. 

If the original district is created by the joint action of boards of different 
counties, a subdistrict thereof is under the jurisdiction of such joint board. Bird 
v. Board of Supervisors, 154-692, 135 N. W. 581. 

For the purpose of construing the phrase "within the limits of the original 
district" as used in this section, that phrase must under the provisions of code 
supp. § 1989-a54 be construed as applicable to the territory annexed to the orig- 
inal district under the provisions of that section. Ibid. 

It is not necessary to establish a subdistrict within the main district in order 
to authorize the commissioners to assess particular lands with a share of the ex- 
pense of a particular portion of the improvement specially beneficial to such land 
in addition to their proper proportion of the expense of the general improvement. 
Fardal Drainage Dist. v. Board of Supervisors, 157 , 138 N. W. 443. 

Sec. 1989-a24. Enlargement of -watercourse or stream. When 
two or more districts shall have their outlet or discharge into the 



52 IOWA DRAINAGE LAWS § 1989-a25 

same natural watercourse or stream and it shall become necessary 
to deepen or enlarge said natural watercourse or stream, each dis- 
trict shall be assessed for the cost of such work in the same ratio to 
such total cost as the discharge of waters of such district bears to the 
combined discharge of waters of the several districts emptying into 
said natural watercourse or stream; bnt no district shall be liable 
to contribute for any improvement or costs and expenses incurred in 
improving said natural watercourse or stream above the point of 
discharge o'f the waters of such district into the same. [30 G. A., 
ch. 68, §25.] 

A district once established may be extended, parts of the land therein included 
in another district, natural streams may be changed, and waters collected in one 
district of land higher up the stream may be turned into ditches lower down, and 
the ditch thus used may be deepened or enlarged to meet the necessities of the 
case. A ditch in another district may be used as an outlet for the water accum- 
ulating on lands in the new district. Prichard v. Board of Supervisors, 150-565, 
129 N. W. 970. 

If the owners of lands drained by the ditch into which the waters of the new 
district are turned are injuriously affected thereby, they have a right to have 
their ditch deepened, enlarged, widened or changed to meet the new situation, 
but they cannot present their objections by intervention in an appeal from the 
proceedings for the establishment of the new district. Ibid. 

Sec. 1989-a2o. New levee or drainage districts. If any levee, 
drainage district or improvement heretofore established, either by 
legal proceedings or by private parties, or which may hereafter be 
established, shall prove insufficient to protect or drain all of the 
lands necessarily tributarj^ thereto, the board of supervisors, upon pe- 
tition therefor as for the establishment of an original levee or drain- 
age district, shall have the power and authority to establish a new levee 
or drainage district covering and including such old district or im- 
provement, together with any additional lands deemed necessary; 
and whenever a new district shall be established as contemplated 
in this section and the new improvement shall extend into or along 
the former improvement, the commissioners of classification and bene- 
fits shall take into consideration the value of such old improvement in 
the construction of the new improvement and credit the same to 
the parties owning the old improvement as their interests may appear. 
[31 G. A., ch. 85, § 6; 30 G. A., ch. 68, § 26.] 

Where a new and larger district is created including a district in which a 
drain is already in existence, the property owner cannot insist that the tile on his 
land belonging to the older improvement is his personal property and recover 
damages for its appropriation. Smittle v. Haag, 140—492, 118 N. W. 869. 

Portions of an adjacent district may be included in a new district if it appears 
that the land so included will receive benefit from the improvement in the new 
district. Prichard v. Board of Supervisors, 150-565, 129 N. W. 970. 

The proceedings under this section are to be the same as for the establish- 
ment of an original drainage district. Ibid. 

The provisions of this section do not exclude the annexation of territory to a 
district under code supp. § 1989-a54, after the improvement has been completed. 
Bird v. Board of Supervisors, 154-692, 135 N. W. 581. 

This section is not limited in its application to the formation of a new dis- 
trict with territory additional to that of the existing district. Kelley v. Drainage 
Dist., 157 , 138 N. W. 841. 



§ 1989-a26 



IOWA DRAINAGE LAWS 53 



Sec. 1989-a26. Special assessment — how paid — improvement cer- 
tificates—waivers. The special assessment lor benefit made by the 
commissioners appointed for that purpose, as corrected and approved 
by the board of supervisors, shall be levied at one time by the board 
against the property so benefited, and when levied and certified shall 
be payable at the office of the county treasurer. If the owner of any 
parcel of land, lot or premises against which any such levy shall have 
been made and certified, which is embraced in any certificate pro- 
vided for in this section, shall within thirty days from the date of such 
assessment promise and agree in writing endorsed upon such certi- 
ficate, or in a separate agreement, that in consideration o'f having the 
right to pay his assessment in installments, he will not make any ob- 
jection of illegality or irregularity as to the assessment of benefits, or 
levy of such tax upon and against his property, but will pay said 
assessment with interest thereon at such rate not exceeding six per 
centum per annum as shall be prescribed by resolution of the board, 
such tax so levied against the land, lot or premises of such owner 
shall be payable in ten equal installments, the first of which with 
interest on the whole assessment shall mature and be payable on the 
date of such assessment, and the others with interest on the whole 
amount unpaid annually thereafter at the same time and in the 
same manner as the March semiannual payment of ordinary taxes; 
but where no such terms and agreement in writing shall be made 
by the owner of any land, lot or premises then the whole of said 
special assessment, so levied upon and against the property of such 
owner, shall mature at one time and be due and payable with inter- 
est from the date of such assessment, and shall be collected at the next 
succeeding March semiannual payment of ordinary taxes. All of such 
tax with interest shall become delinquent on the first day of March 
next after its maturity and shall bear the same interest with the 
same penalties as ordinary taxes. And the board may provide by 
resolution for the issuance of improvement certificates, payable to 
bearer or to the contractors who have constructed the said improve- 
ment or completed part thereof within the meaning of this act in 
payment or part payment therefor, each of which certificates shall 
state the amount of one or more assessments or part thereof made 
against the property designating it and the owners thereof liable to 
assessments for the cost of same, and said certificate may be nego- 
tiated. Such certificates shall transfer to the bearer, contractor or 
assigns all right and interest in and to the tax in every such assess- 
ment or part thereof described therein, and shall authorize such 
bearer, contractor or assignee to collect and receive every assessment 
embraced in said certificate, by or through any of the methods pro- 
vided by law for their collection, as the same mature. Such certificates 
shall bear interest not to exceed six per centum per annum, payable 
annually, and shall be paid by the taxpayer to the county treasurer 
who shall receipt for the same and cause the amount paid to be 
applied to the payment of the certificate issued therefor. Provided, 
that any person shall have the right to pay the full amount of the tax 



54 IOWA DRAINAGE LAWS § 1989-a27 

so levied against his property, together with interest thereon to date 
of payment at any time he desires so to do, even before the maturity 
of any certificates issued therefor. No certificate shall be issued or 
negotiated for the use of the drainage district for less than par value 
with accrued interest up to the delivery or transfer thereof. Should 
the costs of such work exceed the amount of benefits assessed and 
certificates issued, a new apportionment and levy of tax may be made 
and other certificates issued in like manner. If the board of super- 
visors provides for the issuance of improvement certificates by the 
owners of lands, the township trustees may execute waivers, and 
there may be issued improvement certificates for such part of the 
assessment for benefits to highways as is. to be paid by the township, 
such waivers and certificates to conform as nearly as may be to those 
executed upon the assessments against land. [35 G. A., ch. 157, § 2 ] 
[30 G. A., ch. 68, § 27.] 

The provision for the privilege of payment in installments upon waiver of ob- 
jections does not impose a penalty for refusal to waive objections, and it does not 
constitute a denial of the equal protection of the law. Sisson v. Board of Super- 
visors, 128-442, 104 N. W. 454. 

For the purposes of collecting the special assessments referred to in this sec- 
tion they are separated into two classes. One class embraces all assessments 
where the owners have entered into the prescribed contract for payment in in- 
stallments and the other class includes all such assessments with reference to 
which no such contract has been made. As to the first class, it is provided that 
the tax shall be payable in installments with interest not to exceed six per cent. ; 
while the provision as to taxes becoming delinquent on the first day of March 
following and bearing "the same interest with the same penalties as ordinary 
taxes" refers to the second class only, — that is, taxes "where no such terms and 
agreements in writing shall be made." Fit clip atrick v. Fowler, 157-215, 138 
N". W. 392. 

An assessment does not become delinquent in such sense that penalties will 
attach, during the time consumed by the supervisors in prosecuting an appeal 
from an order reducing the assessment. Rystad v. Buena Vista Co.„ 152 N. W. 
364. 

Sec. 1989-a37. Drainage bonds — benefits to highways included. 

If the board of supervisors shall determine that the estimated cost 
of reclamation and improvement of such district of land is greater 
than should be levied in a single year upon the lands benefited, instead 
of issuing improvement certificates as provided in the preceding section, 
it may fix the amount that shall be levied and collected each year and 
may issue drainage bonds of the county, bearing not more than six 
per centum annual interest and payable semiannually in the pro- 
portions and at the times when such taxes shall have been collected, 
and may devote the same at par, with accrued interest, to the pay- 
ment of the work as it progresses or may sell the same at not less 
than par, with accrued interest, and devote the proceeds to such pay- 
ment; and if in the sale of said bonds a premium is received, such pre- 
mium shall be credited to the drainage fund, and should the cost of 
such work exceed the estimate, or should the proceeds of the tax 
when collected be insufficient to pay the principal and interest of 
bonds sold, a new apportionment of the tax may be made and other 
bonds issued and sold in like manner, to meet such excess of cost or 



§ 1989-a28 IOWA DRAINAGE LAWS 55 

shortage in the proceeds of tax, but in no case shall the bonds run 
longer than ■ fifteen years. Any property owner may pay the full 
amount of the benefit assessed against his property before such bonds 
are issued and receive a receipt in full therefor. Such payment snail 
be made to the county treasurer, and it shall be the duty of the county 
auditor to certify to the treasurer the amount of any such assessment 
when requested to do so, and the treasurer shall enter the same upon 
the tax list in his hands in a separate place provided therefor, and shall 
furnish the auditor with duplicate receipts given for all assessments 
so paid in full. The terms and times of payment of the bonds so is- 
sued shall be fixed by the board. Said bonds shall be issued for the 
benefit of the district numbered thereon and each district shall be 
numbered by the board of supervisors and recorded by the auditor, 
said record showing specifically the lands embraced in said district 
and upon which the tax has not been previously paid in full. In no 
case shall the amount of bonds exceed the benefits assessed. Each 
bond issued shall show expressly upon its face that it is to be paid 
only by a tax assessed, levied and collected on the lands within the 
district so designated and numbered, and for the benefit of which 
district such bond is issued; nor shall any tax be levied or collected 
for the payment of said bond or bonds, or the interest thereon, on 
any property outside the district so numbered, designated and bene- 
fited. When the board of supervisors shall provide for the issuance of 
drainage bonds, it shall determine what part, if any, of the amount 
assessed for the benefits to highways shall be included in such bond 
issue, and such part, with interest, shall be paid out of the proper 
funds in the same yearly proportion and at the same times as the 
assessments against the lands of private owners. [ 35 G. A., ch. 157, § 
3; 33 G. A., ch. 120, § 1.] [31 G. A., ch. 84, § 3; 30 G. A., ch. 68, 
§ 28.] 

Sec. Ii>89-a28. Establishment when owners mutually agree. Own- 
ers of land which requires combined drainage may provide for the es- 
tablishment of a drainage district or location and construction of 
drains, ditches and watercourses upon their own lands by mutual 
agreement in writing duly signed, acknowledged and filed with tne 
county auditor; such agreement may include the location, the character 
of the work to be done, the adjustment of the damages, the classifica- 
tion of the lands to be benefited thereby, the amount of taxes or 
special assesssments to be levied, when the same shall be levied, or so 
many of these or other provisions as may be agreed upon, and to such 
extent shall be as valid and binding as though performed in the mode 
and manner provided for in this act. Upon the filing of the agreement 
with the county auditor, the board of supervisors shall at the next 
session thereafter establish such drainage district, and locate the ditch, 
drain or watercourse provided for in said mutual agreement according 
to the terms thereof, and shall thereafter have full and complete 
jurisdiction of the parties and subject matter, and order such pro- 
cedure under the provisions of this act as may be required or neces- 
sary to carry out the object, purpose and intent of such agreement 



56 IOWA DRAINAGE LAWS § 1989-a29 

and to complete and construct the desired improvement and shall 
retain jurisdiction of the same as fully as in other cases made and 
provided for in this act. [30 G. A., ch. 6.8, § 29.] 

Sec. 1989-a29. Establishment through two or more counties — vot- 
ing powers of boards of supervisors equalized. When the desired 
levee or drainage district extends into or through two or more coun- 
ties and embraces land in two or more counties, the petition of one or 
more owners of land to be affected or benefited by such improvement 
shall be presented to the county auditor of each county into or through 
which said levee or drainage district will extend, accompanied by a bond 
to be filed with the county auditor of each of the said counties at the 
time of filing such petition, conditioned as provided when the district 
is wholly within one county, in an amount and with sureties satisfactory 
to and approved by the board of supervisors. Upon the presentation 
o'f such petition and the approval of such bond, the board of supervisors 
of each said counties shall appoint a commissioner, and the commis- 
sioners of the several counties thus appointed shall meet within thirty 
days thereafter and appoint a competent engineer, and such commis- 
sioners and engineer shall together make a survey of the entire lands 
embraced in the district, and shall determine what improvement or im- 
provements in the way of levees, drains, ditches or changing of natur- 
al watercourses are necessary for the reclamation of the lands de- 
scribed in the said petition; the engineer shall make a plat of all of 
the lands of said district, showing thereon the proposed improve- 
ments, the elevations and levels of said lands, so far as he may 
deem necessary, and a profile of said levee, drains, ditches or changes 
in any natural watercourse and shall file a copy in the auditor's office 
of each of said counties together with a full return of said commis- 
sioners and engineer, explaining the situation, describing the lands, 
the improvements, what effect said improvements will have upon the 
lands of said district, the course and length of any levee, drain, 
ditch or change of any natural watercourse through each tract of 
land, the estimated cost of the same, the dimensions of said im- 
provement together with the names of the owners of all lands in- 
cluded within said district, as shown by the transfer books in the 
auditor's office, and which in their opinion will be affected or bene- 
fited thereby, together with such other facts and recommendations 
as to them shall seem advisable, and especially whether or not in 
their judgment such levee or drainage district should be established. 
Immediately upon the filing of such return, plat and profile, if such 
recommends the establishment of the levy or drainage district, 
each county auditor of said counties shall cause the owners of the 
lands, as shown by the transfer books in the auditor's office, and also 
the person in actual occupancy of any lots or lands in the district and 
also each lien holder or incumbrancer, as shown by the county records, 
of any land through or abutting upon which the proposed improve- 
ment extends, to be notified of the time and place where the boards 
of the several counties will meet in joint session for the consideration 
of said petition and return. Such notice shall be the same and served 



§§ 1989-a30-1989-a32 IOWA DRAINAGE LAWS 57 

in the same time and manner as provided in this act when the levee 
or drainage district is wholly within one county. When the boards 
of supervisors are of unequal number, each member of the board of 
the smallest number of members shall cast a full vote and each mem- 
ber of any larger board shall cast such fractional part of a full vote 
as may be determined by making the smallest number of the mem- 
bership of any board the numerator and the number of the member- 
ship of any such larger board entitled to vote, the denominator of 
such fraction, so as to equalize the voting power of each board. 
[33 G. A., ch. 118, § 18.] [30 G. A., ch. 68, § 30.] 

Failure to record the proceedings of the joint action of the boards in each of 
the counties will not defeat the jurisdiction of the court on appeal from such ac- 
tion. In re Appeal of Head, 141-651, 118 N. W. 884. 

This section as amended by acts of 33 G. A., ch. 118, § 18, clearly authorizes 
the members of the boards to vote separately at their joint session. Schumaker 
v. Edington, 152-596, 132 N. W. 966. 

Notice need net be published in a county, no lands of which are proposed to 
be included in the district by the report of the commissioners even though the 
petition proposed to include such lands. Goeppinger v. Board, 152 N. W. 58. 

A landowner cannot complain that notice was not served on his tenants, the 
landowner having been served as by law provided. Ibid. 

Sec. 1989-a30. Claims for damages — Avhere filed. Any person 
claiming damages as compensation for, or on account of, the con- 
struction of such improvement shall file his claim in writing therefor 
in the office of the county auditor of the county in which his land is 
situated, at least five days prior to the time at which the petition has 
been set for hearing, and on failure to file such claims at the time 
specified shall be held to have waived his right thereto. [30 G. A., ch. 
68, § 31.] 

Waiver of all claim for damages is the penalty for failure to file the claim as 
in this section provided. Goeppinger v. Board, 152 N. W. 58. 

Sec. 1989-a31. Hearing — appraisers. At the time set for hearing 
such petition the boards of the several counties shall meet at the place 
designated in said notice and sit jointly in considering the petition 
and proceed in the same manner as provided in section five of this 
act, except that if it becomes necessary to appoint appraisers, the 
boards of supervisors acting jointly shall appoint one appraiser from 
each county, and if said levee or drainage district extends into or 
through only two counties then the two appraisers shall choose a 
third, each of whom shall have like qualifications as provided where 
the improvement is wholly within one county and they shall then pro- 
ceed in the same manner and make the same return as provided in 
section six of this act, except that a copy thereof shall be filed in the 
auditor's office of each of the several counties. After the filing of the 
report of such appraisers the further proceedings of the boards of sup- 
ervisors acting jointly shall be the same as in this act provided where 
the levee or drainage district is wholly within one county, so far as ap- 
plicable, except as herein otherwise provided. [30 G. A., ch. 68, § 32.] 

Sec. 1989-a32. Assessment of costs and damages — improvement 
certificates— bonds. If the boards of supervisors, acting jointly, shall 



58 IOWA DRAINAGE LAWS .§§ 1989-a33-1989-a34 

establish the levee o ! r drainage district, they shall appoint a commis- 
sion, one of whom shall be selected from each county and in .addi- 
tion thereto a competent engineer, each of whom shall have the same 
qualifications as provided where the district is wholly within one 
county; and said commission shall within twenty days go upon and 
view the premises and begin the work ofrclassifiying the same as here- 
inbefore provided where the district is wholly within one county, and 
in addition thereto shall make an equitable apportionment of the 
costs, expenses, costs of construction, fees and damages assessed for the 
construction of such improvement or of the repairing or reopening the 
same, and make report thereof as provided where the improvement is 
wholly within one county, except a copy of said report shall be filed 
with each of the several county auditors. Immediately upon the filing 
of such report the several county auditors, acting jointly, shall cause 
notice to be served of the time when and the place where the boards 
of supervisors will meet and consider such report, which notice shall 
be the same and served in the same time and manner and all pro- 
ceedings thereon shall be the same as provided where the district is 
wholly within one county, except after the amount to be assessed and 
levied against the several parcels or tracts of land shall have been 
apportioned and finally determined, the several boards of supervisors, 
acting separately, and within their own counties, shall proceed to levy 
and collect the taxes thus apportioned in the same manner as pro- 
vided where the district is wholly within one county, and they may 
issue improvement certificates or may sell bonds for the full amount 
of the benefits apportioned to such county. [33 G. A., ch. 118, § 19.1 
[30 G. A., ch. 68, § 33.] 

Ascertainment of the cost to be provided for, and apportioning the same 
among the several parcels of land benefited by the improvement, constitute the 
"assessments" herein referred to. Greines v. Swartz, lid N. W. 598. 

A vendor is liable to the purchaser for the amount of such "assessments" under 
a contract provided for payment of the lien of assessments. Ibid. 

Sec. 1989-a33. Letting work. If the boards of supervisors, acting 
jointly, shall establish such levee or drainage district, the auditors of 
the several counties shall immediately thereafter, acting jointly, 
cause notice to be given of the time and place of the meeting of the 
boards for letting the contract or contracts for the construction of 
the improvement. The notices, bond and all other proceedings in 
relation to letting the contract or contracts shall be the same as in 
this act provided where the district is wholly within one county, ex- 
cept that the several boards shall act jointly. [30 G. A., ch. 68, § 34.] 

In case of a joint drainage district bonds are to be issued by each county sev- 
erally in proportion to the benefits to such county. Wood v. Hall, 138-308, 110 
N. W. 2 70. 

The county boards acting jointly or severally have no power to provide that 
contractors shall purchase bonds covering the preliminary expenses and rights 
of way. Ibid. 

But mere irregularities in the contract will not render it void if otherwise en- 
forceable. Ibid. 

Sec. 1989-a34. Supervising engineer — contractor — how paid. At 

the time of establishing the levee or drainage district the boards of 



§§ 1989-a35-1989-a36 IOWA DRAINAGE LAWS 59 

supervisors shall appoint a competent engineer to have charge of the 
construction of the work, and they shall fix' his compensation therefor, 
and he shall before entering upon and taking charge of said work 
give bond to the counties for the use and benefit of the levee or drain- 
age district, approved by the boards of supervisors in such sum as they 
may direct, conditioned for the faithful discharge of his duties. The 
engineer in charge of the work shall furnish the contractor monthly 
estimates of the amount of work done on each section and the amount 
due from each county, a duplicate of which shall be filed with the 
auditor of each of the several counties. Upon the filing of such state- 
ment each auditor shall draw a warrant or deliver to him improve- 
ment certificates, as the case may be, in favor of the contractor for 
eighty per centum of the amount due from his respective county. 
When said improvement is completed to the satisfaction of the engi- 
neer in charge and accepted by the boards of supervisors, the engineer 
shall certify such fact to the several county auditors and each county 
auditor shall draw a warrant in favor of the contractor, or deliver 
to him improvement certificates, for the balance due from his respec- 
tive county. [30 G. A., ch. 68, § 35.] 

Sec. 1989-a35. Appeals — notice — bond. Any person or persons 
aggrieved shall have the right to appeal in the same time and in the 
same manner as provided when the district is wholly in one county, 
except that if the appeal is taken from the action of the boards in 
establishing the levee or drainage district, such appeal may be taken 
to the district court of either county in which the district or some 
part thereof is located. If said appeal is from the award of damages 
or assessment of benefits the appeal shall be taken to the district 
court of the county in which the land affected is located. Notice of 
appeal and bond shall be given to and filed with the county auditor 
in the county where the appeal is taken. [33 G. A., ch. 118, §20.] 
[30 G. A., ch. 68, § 36.] 

As claims for damages are to be filed with the auditor of the county in which 
the land injured is situated and an appeal from allowance of such damages is 
to the district court of that county only, a notice of appeal served on the county 
auditor of such county is sufficient. Cooper v. Calhoun County, 152-252, 132 
N. W. 40. 

Under this section as amended by 33 G. A., ch. 118, § 20, notice of appeal and 
appeal bond are to be filed with the county auditor in the county where the appeal 
is taken. Schumaker v. Edington, 152-596, 132 N. W. 966. 

Under this section as amended by 33 G. A., ch. 118, the district court does not 
lose jurisdiction on failure of the appellant to file a petition. Ehvood v. Board 
of Supervisors, 156-407, 136 N. W. 709. 

Sec. 1989-a36. District court to establish — when. Whenever the 
establishment of a levee or drainage district, extending into or through 
two or more counties, is petitioned for as hereinbefore provided and one 
or more of such boards of supervisors neglect, fail or refuse to take 
action thereon, the petitioner or petitioners may cause notice in writing 
to be served upon the chairman of such board or boards, demanding 
that action be taken upon the prayer of the petition within twenty 
days from and after the service of such notice; and if such board or 



60 IOWA DRAINAGE LAWS §§ 1989-a37-1989-a38 

boards shall neglect, fail or refuse to take action thereon within the 
time named, or if such action is taken and the boards of supervisors 
cannot agree as to the proper determination thereof, the petitioner or 
petitioners may cause such proceedings to be transferred to the district 
court of either of the counties into or through which such proposed 
district, or some part thereof, extends* by serving notice upon the 
auditors of the several counties within ten days after the expiration 
of the time fixed by the notice, served upon the chairman ot tne ooaru 
or boards, or within ten days after the failure of such boards to agree. 
Upon such notice being given the auditors shall, acting jointly, pre- 
pare and certify to the clerk of the district court a full and com- 
plete transcript of all proceedings had in such case, on or before 
the first day of the next succeeding term of said court. The clerk 
of the district court shall thereupon docket the case and the same 
shall be tried as in equity and the appearance term shall be the trial 
term, and the court shall enter judgment and decree dismissing the 
case or establishing such levee or drainage district and may by 
proper orders and writs enforce its judgment and decree. [30 G. A., 
ch. 68, § 37.] 

Sec. 1989-a37. Special sessions of boards of supervisors. When- 
ever the district is located in two or more counties, the boards of 
• supervisors shall have power and authority to adjourn from time 
to time and meet in special session and in all cases shall have the 
same jurisdiction, power and authority as provided where the im- 
provement is wholly within one county, and all proceedings shall be 
the same so far as applicable and not herein otherwise provided. 
[30 G. A., ch. 68, § 38.] 

Sec. 1989-a38. Cities and towns included — benefits assessed — no- 
tice — objections — appeal. The board of supervisors shall have the 
same power, right and authority to establish a levee or drainage 
district that includes the whole or any part of any incorporated 
town or city, including cities acting under special charter, as they 
have to establish districts as hereinbefore provided, and they shall 
have the same power, right and authority with respect to the assess- 
ment of damages and benefits within such towns or cities as they 
have in other cases provided for in this act, and like notice to' such 
city or town with respect to the establishment of such district and 
the apportionment and assessment of damages and benefits shall 
be given as is required by this act to be given to owners of property 
damaged or benefited by the establishment or construction of such 
improvement. Whenever the streets, alleys, public ways or parks 
of any incorporated town or city, or city acting under special charter, 
so included within a levee or drainage district, will be beneficially 
affected by the construction of any improvement or improvements 
in such district, it shall be the duty o'f the commissioners appointed 
to classify and assess benefits to determine and return in their re- 
port the amount of benefit to such streets, alleys, public ways and 
parks, and notice thereof shall be served upon the clerk of such 
incorporated town or city, or city acting under special charter, and 



§§1989-a38a-1989-a40 IOWA DRAINAGE LAWS 61 

the town or city council, or clerk of such town or city, may file 
objections to such assessment in the time and manner provided in 
case of land owners," and the town or city council shall have the same 
right to appeal from the finding of the board with reference to such 
an assessment, and such assessment, as finally established, shall draw 
interest at the same rate and from the same time as the assess-' 
ments against lands, and the board of supervisors and the town or 
city council shall have the same power and authority in reference 
to issuing improvement certificates or drainage bonds and executing 
waivers on account of such assessment for benefits to streets, alleys, 
public ways and parks as is herein conferred upon the board of su- 
pervisors and township trustees in reference to assessment for bene- 
fits to. highways. [35 G. A., ch. 157, § 4.] [30 G. A., ch. 68, § 39.] 

Sec. 1989-a38a. Retroactive. The provisions of this act are hereby 
made retroactive, and all waivers and improvement certificates here- 
tofore issued by boards of supervisors are hereby legalized, conferred 
and made valid. [35 G. A., ch. 157, § 5.] 

Sec. 1989-a39. Outlet in another state — right of way. Whenever 
a drainage district is established in any county in this state and no 
practicable or feasible outlet can be obtained except through the 
lands of an adjoining state, the board of supervisors of such county 
shall have power and authority to purchase a right of way for such 
outlet in such adjoining state and pay for the same out of the funds 
of such district. [30 G. A., ch. 6 8, § 40.] 

While the board of supervisors may acquire an outlet over the land of an ad- 
joining state or may unite with the board in another county for the establish- 
ment of a district including lands in both counties, it is not provided that where 
the district is located entirely in one county the board may acquire an outlet 
through land in another county. Clary v. Woodbury County, 135-488, 113 N. 
W. 330. 

Sec. 1989-a40. Watchmen. Whenever a levee has been established, 
or shall hereafter be established, and constructed in any county, the 
board of supervisors shall be empowered and authorized to employ 
one or more persons whose duty it shall be to watch such levee and 
make repairs thereon in case of emergency or cause the same to be 
made. And such employe shall file with the county auditor an item- 
ized bill for services rendered, and cost and expense incurred in 
watching or repairing such levee, and the same shall be audited and 
allowed by the board as other claims and demands and the amount 
or amounts so allowed shall be paid by the county from the funds 
belonging to such levee district. If there are no funds on hand 
belonging to such district, the same shall be paid in the first in- 
stance by the county from the general fund and the board shall 
proceed to assess and levy a tax upon the lands in such district, 
which assessment and levy shall be apportioned to each tract of land 
in the same ratio that the original cost thereof was apportioned, and 
when collected the auditor shall draw a warrant thereon in favor 
of the county for the sum or sums so paid from the county funds. 
[30 G. A., ch. 68, § 41.] 



62 IOWA DRAINAGE LAWS §§ 1989-a41-1989-a43 

Sec. 1989-a41. Fees and expenses. Any engineer employed under 
the provisions of this act shall receive such compensation per diem 
as shall be fixed and determined by the board of supervisors. Ap- 
praisers of damages and commissioners to assess benefits, other than 
the engineer, shall receive such compensation as the board of super- 
visors may allow, not to exceed four*dollars per day each, and all 
other fees and costs required under the provisions of this act shall 
be the same as provided by law for like services in other cases. Such 
costs and expenses shall be paid by the order of the board of super- 
visors out of the county treasury from the levee or drainage funds 
collected for that purpose upon warrants drawn by the county audi- 
tor. And the amount of fees for publication of all notices required 
to be published by the provisions of this act shall be fixed by the 
board of supervisors not exceeding thirty-three and one-third cents 
for each ten lines of brevier type, or its equivalent. [35 G. A., ch. 
159, § 1.] [31 G. A., ch. 84, § 4; 30 G. A., ch. 68, § 42.] 

Sec. 1989-a42. Drainage record — county auditor — additional help. 

That section nineteen hundred eighty-nine-a forty-two of the supple- 
ment to the code, 19 07, is hereby repealed and the following enacted 
in lieu thereof: 

"Whenever a levee or drainage district or districts shall be peti- 
tioned for or established in any county, the board of supervisors shall 
furnish such additional help as shall be just and reasonable, to be 
paid by the county; and the county auditor shall be the custodian 
of all papers and records pertaining to the levee or drainage matter 
in his county and shall keep the book known as the 'drainage record' 
and shall record therein all of the proceedings of the board of 
supervisors pertaining to the subject of levees or drainage, as well as 
the papers required to be filed by the county auditor in such pro- 
ceedings." [33 G. A., ch. 121, § 1.] [30 G. A., ch. 68, § 43.] 

Sec. 1989-a43. Drainage of highways— outlet through private prop- 
erty. Whenever the township trustees of any township or townships 
shall desire to drain any highway within or under the jurisdiction 
of such trustees, and it becomes necessary to cross the lands of a 
private owner or owners to obtain a proper outlet and the trustees 
cannot agree with the owner or owners of such land as to how, where 
and upon what terms such drain may be constructed, such trustees 
may file in the office of the county auditor a petition describing the 
highway to be drained and the lands necessary to be crossed to ; ob- 
tain a proper outlet, the starting point, route and terminus of the 
desired drain, as near as may be, and asking the establishment of 
such drain. Upon the filing of such petition the county auditor shall 
appoint a commissioner, who shall be a competent engineer, and 
place a copy of the petition in his hands and he shall proceed to sur- 
vey the proposed ditch or drain along the route described in the 
petition, or other route if found more practicable or feasible, and 
shall return a plat and profile thereof to the county auditor, and his 
return shall set forth a full and detailed description thereof, its 
size, dimensions, whether it will require a covered or open drain, its 



§§ 1989-a44-1989-a46 IOWA DRAINAGE LAWS 63 

availability, necessity and probable cost, with a description of each 
tract of land or lot owned by different persons through which or 
abutting upon which the drain is proposed to be located and such 
other facts and recommendations as he may deem material; and he 
shall also apportion among the several townships, if more than one, 
the ratio of the cost of construction and expenses that shall be borne 
by each township. After the filing of such report the further pro- 
ceedings shall be the same as provided in title eight, chapter one of 
the code in relation to the establishment of highways, except that 
the costs, expenses and damages shall be paid by the township 
trustees from the road fund of such township or townships, or from 
the county road fund, or partly from each of said funds, as the board 
of supervisors may determine. If the board of supervisors shall 
establish such drain, the same shall be constructed by the board of 
supervisors in the same manner that other county work is done, and 
the cost thereof shall be paid from the road fund of such township 
or townships, or from the county road fund, or partly from each of 
said funds, as the board of supervisors may direct, or the township 
trustees having jurisdiction over said highway shall have the right, 
if they deem advisable, to petition for the establishment of a drain- 
age district including therein said highway, and said petition shall 
be considered and acted upon and proceedings had thereunder in all 
respects the same as provided where petition is signed by one or 
more of the land owners whose lands would be affected by or assessed 
for the expenses of the proposed improvements. [31 G. A., ch. 84, 
§ 5; 30 G. A., ch. 68, § 44.] 

Sec. 1989-a44. Annual inspection. The board of supervisors of 
any county in or through which an improvement of the character 
provided for in this act extends, or shall extend, shall cause a compe- 
tent engineer to inspect such improvement whenever they may deem 
it necessary, and at least once in each year, and he shall make re- 
port to such board of the condition of the improvement together 
with such recommendation as he deems necessary. [33 G. A., ch. 
118, §21.] [30 G. A., ch. 68, §45.] 

Sec. 1989-a45. Tax lien upon premises. The tax provided for in 
this act, when levied, shall be a lien upon all premises upon which 
the same is assessed to the same extent and in the same manner as 
taxes levied for county and state purposes. [30 G. A., ch. 68, § 46.] 

The fact that the assessment becomes a lien prior to a lease or mortgage does 
not render the statute unconstitutional as to mortgagees. Fitchpatrick v. BotheraSj 
150-376, 130 N. W. 163. 

Sec. 1989-a46. Defects in proceedings. The provisions of this act 
shall be liberally construed to promote the leveeing, ditching, drain- 
ing and reclamation of wet, overflow or agricultural lands; the col- 
lection of the assessments shall not be defeated, where the proper 
notices have been given, by reason of any defect in the proceedings 
occurring prior to the order of the board of supervisors locating 
and establishing the levee, ditch, drain or change of natural water- 
course provided for in this act, but such order or orders shall be 



64 IOWA DRAINAGE LAWS §§ 1989-a47-1989-a48 

conclusive and final that all prior proceedings were regular and ac- 
cording to law unless they were appealed from. But if upon appeal 
the court shall deem it just and proper to release any person or 
modify his assessment or liability, it shall in no manner affect the 
rights or liability of any person other than the appellant; and the 
failure to appeal from the order of the 'board of supervisors of which 
complaint is made shall be a waiver of any illegality in the proceed- 
ings and the remedies provided £or in this act shall exclude all other 
remedies. [30 G. A., ch. 68, § 47.] 

This provision as to liberal construction is to be applied only when it does not 
result in the repealing of some express provision of the statute. Clary v. Wood- 
bury County, 135-488, 113 N. W. 330. 

Failure of the county auditor to record the proceedings will not defeat the juris- 
diction of the court on appeal. In re Appeal of Head, 141-651, 118 N. W. 884. 

This section does not expressly or by implication limit the remedies for a re- 
view by the supreme court of the judgment which the district may enter upon 
the trial of an appeal. Hartshorn v. Wright County Dist. Ct., 142-72, 120 N. 
W. 479. 

Where proper notices have been given, the collection of assessments cannot be 
defeated by reason of any defect in the proceedings occurring prior to the action 
of the board establishing the ditch. In re Appeal of Lightner, 145-95, 123 N. 
W. 749. 

It is competent for the legislature to create a tribunal for hearing objections 
and provide that all objections not heard before such tribunal shall be considered 
waived. Ibid. 

The only persons who may complain in a proceeding for the making of the con- 
templated improvement are landowners whose lands are within the proposed dis- 
trict. Prichard v. Board of Supervisors, 150-565, 129 N. W. 970. 

The court is required to solve doubts as to the propriety of the enterprise in 
favor of the action, of the board. Bird v. Board of Supervisors, 154-692, 135 
N. W. 581. 

The effect of this section is to say that the only remedy of an owner of land 
contained within the district and who is made a party to the hearing of a petition 
for the establishment of the district is by appeal from the action of the board, 
and a failure to avail himself of that remedy is a waiver of all other remedies. 
Kelley v. Drainage Dist, 157 , 138 N. W. 841. 

Section applied. Substantial compliance with the law is all sufficient. Goep- 
pinger v. Board, 152 N. W. 58. 

Appeal is the exclusive remedy for the review of all errors and irregularities. 
Ibid. 

Sec. 1989-a47. Additional to certain statutes. The provisions of 
this act shall be construed as an independent procedure additional to 
chapter two, title ten of the code and supplement, relating to the 
location, establishment and construction of levees, drains, ditches 
and watercourses and shall not be held to repeal any of such pro- 
visions. [31 G. A., ch. 84, §6; 30 G. A., ch. 68, §48.] 

The provisions of this statute are independent of those previously applicable 
to such proceedings. Prichard v. Board of Supervisors, 150-565, 129 N. W. 970. 

Sec. 1989-a48. Preliminary expenses — how paid. Whenever a pe- 
tition is filed with the county auditor of any county within the state, 
as contemplated in chapter sixty-eight, acts of the thirtieth general 
assembly of Iowa, for the establishment of a drainage district in any 
county or counties within the state, the board of supervisors of said 






§ 1989-a49 IOWA DRAINAGE LAWS 65 

county (or counties if there be more than one) are hereby author- 
ized to pay all necessary preliminary expenses in connection with 
said drainage district, out of the general county fund of said county, 
or if there be more than one county from the general county fund 
of each of the counties included in said district in such proportion 
as the work done or expense created in each county bears to the 
whole amount of work done or expense created, said amounts to be 
determined by the engineer in charge of the work, and they shall 
replace the same to the credit of the county fund of said county or 
counties as their interests may appear as soon as possible after the 
drainage district is established, or if said district be not established, 
then said amounts shall be paid from the proceeds of the bond de- 
posited with the county auditor for that purpose, as provided for in 
chapter sixty-eight, acts of the thirtieth general assembly of Iowa. [31 
G. A., ch. 86.] 

Prior to the enactment of this provision authorizing preliminary expenses to be 
paid by the county out of its general funds, held that the county was under no 
liability with reference to such expenses and that a bond given by petitioners to 
pay such preliminary expenses in a proceeding under a statute which was uncon- 
stitutional could not be enforced by the county as a common-law obligation. 
Carroll County v. Cuthbertson, 136—458, 114 N. W. 17. 

Sec. 1989-a49. Pumping stations — petition. The board of super- 
visors of any county or counties in the state in which a drainage or 
levee district has been or may hereinafter be organized as provided in 
this act may provide as a part of said drainage system for the estab- 
lishment and maintenance of a pumping station or stations, when and 
where the same may be necessary to secure a proper outlet for the 
drainage of the land comprising the said district or any portion there- 
of, and the cost of construction and maintenance of said pumping 
station or stations shall be levied upon and collected from the lands in 
the drainage or levee district, or the lands benefited by such pumping 
station or stations, in the same manner as provided for in the con- 
struction and maintenance of ditches or drain or levees in this act; 
provided that such pumping station or stations shall not be established 
or maintained unless a petition therefor shall be presented to the 
board of supervisors signed by not less than one third of the owners 
of lands benefited thereby, and the lands benefited by such pumping 
station or stations shall be determined by the board of supervisors on 
the report of the engineer, nor shall additional land be taken into any 
such drainage district after the improvements therein have been sub- 
stantially completed, unless thirty-three and one-third per cent of the 
owners of the land proposed to be taken in shall have petitioned there- 
for or consented in writing thereto. [34 G. A., ch. 87, § 7.] [32 G. 
A., ch. 94, § 5.] 

Where a petition for the establishment of a drainage district and pumping sta- 
tion was filed prior to the passage of Ch. 87, 34 G. A., and proceedings had been 
taken before the board of supervisors thereon, section 8 of said Ch. 87 excepted 
such proceedings from the requirements of the amendment. Mittman v. Farmer, 
162-364. 



66 IOWA DRAINAGE LAWS §§ 1989-a50-1989-a52a 

A petition filed under the provisions of this section, requesting the establishment 
of a drainage district and pumping station, need not contain one-third of the 
land owners to be benefited thereby as was required by an amendment to this 
section made some time after the petition had been filed and proceedings had been 
taken before the board of supervisors. Ibid. 

Sec. 1989-a50. Proceedings under petitions heretofore filed. When- 
ever any petition has heretofore been filed and any action thereon has 
been taken by the board of supervisors that is not final, it shall not be 
necessary that a new petition shall be filed in order to obtain the bene- 
fits of this act, but the board of supervisors are hereby empowered to 
proceed with the improvement from the point at which legal proceed- 
ings thereon were stopped. [32 G. A., ch. 94, § 6.] 

Sec. 1989-a51. Statutes applicable. That the measure of damages 
for locating, establishing and constructing a levee, ditch, drain or 
watercourse across the right of way of any railroad company provided 
for in section three of this act shall be construed to apply to all cases 
and proceedings now pending involving such question; and the pro- 
visions of this act shall also be applicable to chapter two, title ten of 
the code. [32 G. A., ch. 95. § 4.] 

Sec. 1989^a52. Pumping stations. The board of supervisors of any 
county or counties in the state in which a drainage district has been 
or may hereafter be organized in the manner provided in chapter two 
of title ten of the code may provide for the establishment and main- 
tenance of a pumping station when and where the same shall be neces- 
sary to secure a proper outlet for the lands comprising the district, 
and the costs of construction and maintenance of such pumping sta- 
tion or plant shall be levied upon and collected from the lands in the 
drainage district in the same manner as provided for the construction 
and maintenance of ditches as provided in title ten, chapter two of 
the code, and code supplement, except the petition referred to shall 
require the signatures of fifty per cent of the land owners of such 
district. [30 G. A., ch. 69.] 

This being an amendment to Ch. 2, Title 10, of the Code, it was unnecessary 
to procure fifty per cent of the land owners to be benefited by a drainage district 
to authorize establishing a pumping station in connection therewith, as the pro- 
ceedings were commenced under Sec. 1989-al of the Code Supplement, 1907, and 
following sections, which is a procedure independent and additional to Ch. 2, Title 
10, of the Code. Mittman v. Farmer, 162-364.. 

Sec. 1989-a52a. Pumping stations and levees — petition for man- 
agement by trustees. That section nineteen hundred eighty-nine-a 
fifty-two a, supplement to the code, 1913, be and the same is hereby 
repealed, and the following enacted as a substitute therefor: 

"That in all drainage or levee districts having and operating a 
pumping station or maintaining a levee, or both heretofore established 
or which may be hereafter established under the laws of the state of 
Iowa, after the completion of the construction work of such district, 
any three or more persons who own land within the district which 
has been assessed for benefits may file in the office of the county 
auditor a petition signed by a majority of the persons owning land 
within the district which has been assessed for benefits, asking that 



§§ 1989-a52b-1989-a52f IOWA DRAINAGE LAWS 67 

said districts be placed under the control and management of three 
trustees, residents of the county or counties in which the said district 
is located and land owners in said district, to be elected by the persons 
owning land in said district that has been assessed for benefits." [36 
G .A., (H. F. 152, §1.)] [35 G. A., ch. 158, §1.] 

Sec. 1989-a52b. Canvass of petition — election ordered — notice. 

Upon filing of said petition the board of supervisors shall at their next 
regular meeting canvass the same and if it shall be determined that the 
same is signed by a majority of all of the persons owning land in said 
district that has been assessed for benefits, the board of supervisors 
shall order an election to be held at some convenient place in the 
district, at some time not less than thirty nor more than sixty days 
from the date of the canvass of said petition, for the election of said 
trustees, and shall name from the residents of the district three judges 
and two clerks of election and shall cause notice of said election to- 
gether with the time and place of holding same to be published for 
two consecutive weeks in the newspaper published in the county in 
which the district is situated in which the official proceedings of the 
board of supervisors are published. [35 G. A., ch. 158, § 2.] 

Sec. 1989-a52c. Election — canvass of returns. On the day desig- 
nated for said election the polls shall open at eight o'clock a. m. and 
remain open until seven o'clock p. m. and the judges of election shall 
canvass the vote, and certify the same to the board of supervisors and 
deposit the ballots cast and the poll books showing the names of the 
voters with the county auditor. The canvass of the returns shall be on 
the Monday following said election and the county auditor shall issue a 
certificate to the trustees of their election. [ 35 G. A., ch 158, § 3.] 

Sec. 1989-a52d. Term of office — vacancy. The trustees shall hold 
office for a period of two years and until their successors are elected 
and qualify. Should there be a vacancy in the board of trustees by 
death, removal or resignation, the remaining members of the boara 
shall have power to fill the vacancy, by appointment, for the unexpired 
portion of the term. [36 G. A. (H. F. 484, § 2.)] [ 35 G. A., ch. 
158, § 4.] 

Sec. 1989-a52e. Biennial election., Elections shall be held bienni- 
ally in each district upon the first Monday of the month in which the 
first election was held, for the election of trustees, which shall be 
called, held and the returns certified in the same manner as the first 
election. [35 G. A., ch. 158, § 5.] 

Sec. 1989-a52f. Powers and duties of trustees — costs and expenses. 

The said trustees shall qualify in the same manner as township trus- 
tees, and upon their election and qualification they shall have control 
and supervision of said district in the same manner and with the same 
powers as are conferred upon the board of supervisors for the control 
and supervision of drainage districts by sections nineteen hundred 
eighty-nine a-twenty-one, nineteen hundred eighty-nine a-forty-nine 
and nineteen hundred eighty-nine-a fifty-two of the supplement to 
the code, 19 07, and all costs and expenses necessary to carry out 



68 IOWA DRAINAGE LAWS §§ 1989-a52g-1989-a53 

the powers and duties hereby conferred upon said trustees shall 
be levied and collected upon the land in said district in the same 
manner as the same are now levied and collected, upon certificate 
by the trustees to the board .of supervisors, of the amount neces- 
sary therefor. The said fund when so levied and collected shall 
be held by the county treasurer of t4ie county in which the same is 
collected, subject to the order of the trustees of said district, and 
shall be expended only upon their order upon warrants drawn by the 
county auditor upon certificates approved by the said board of trustees, 
signed by the president of the board; and the said trustees shall have 
power, if in their judgment it is necessary, to employ a clerk for 
said district and to fix his compensation. The members of the board 
of trustees shall receive as compensation for their services three dol- 
lars, per day, each, for time actually spent in looking after the affairs 
of the district, and their necessary traveling expenses. [36 G. A. (H. F. 
484, § 1)] [35 G. A., ch. 158, § 6.] 

Sec. 1989-a52g. Report — filed with auditor for record. Such trus- 
tees shall, from time to time, and with reasonable promptness furnish 
the auditor of each county in which any part of said district is situated 
with a correct record of their acts and proceedings, which statement 
must be signed by at least two of their number and shall be recorded 
by the auditor in the drainage record. [35 G. A., ch. 158, § 7.] 

Sec. 1989-a53. Owners may drain. Owners of land may drain the 
same in the general course of natural drainage, by constructing open 
or covered drains, discharging the same into any natural watercourse, 
or into any natural depression, whereby the water will be carried into 
some natural watercourse, and when such drainage is wholly upon 
the owner's land he shall not be liable in damages therefor to any per- 
son or persons or corporation. Nothing in this act shall, in any man- 
ner, be construed to affect the rights or liabilities of proprietors in re- 
spect to running waters or streams. [ 30 G. A., ch. 70.] 

The owner may conduct surface water by means of tile drains upon his own 
land into the natural and usual channel which nature has provided for its dis- 
charge upon his neighbor's land without being liable in damages. This was the 
rule before the adoption of this statute. Dorr v. Simmersc J n J 127-551, 103 N. 
W. 806. 

In an injunction case to restrain the establishment by a landowner of a system 
of tile drainage on his own land at the complaint of an adjoining owner, it must 
appear that the defendant is about to materially and unduly increase the flow of 
water to plaintiff's imminent damage. Wirds v. Vierkandt, 131-125, 108 N. W. 
3 08. 

Where a ditch is by agreement of adjoining owners constructed along a nat- 
ural watercourse, connecting with an outlet, the upper owner's rights are not 
limited to the drainage of the particular area from which the ditch of itself con- 
ducts surface water, but he may construct lateral tile drains so as to drain lands 
not otherwise affected. Neuhring v. Schmidt, 130-401, 106 N. W. 630. 

One may lawfully tile a natural watercourse which passes over his land onto 
that of another where the effect is not to cast a greater quantity of water or to 
carry the water in a different manner upon the land of his neighbor. Hull v. 
Harker, 130-190, 106 N. W. 629. 

A natural watercourse is not necessarily a channel with banks, but if the 
surface water uniformly flows in a given course within reasonable limits, the 
line of its flow is a watercourse. Ibid. 



§ 1989-a54 IOWA DRAINAGE LAWS 69 

The statute as to private drainage and tiling is merely declaratory of the rule 
at common law, that the owner of land may tile-drain it in the general course of 
natural drainage, discharging the water collected into one natural watercourse 
or natural depression by which the water will be carried into some natural water- 
course. Pohlman v. Chicago, M. & St. P. R. Co., 131-89, 107 N. W. 1025. 

Where by means of tile drain the owner of the higher land discharges on 
the lower land water from an area which otherwise would not have been drained 
across the lower land, or at a point where the water of the higher land would not 
naturally have been discharged, to the material injury of the land, the owner of 
the higher land is liable in damages. Sheker v. Machovec, 139-1, 116 N. W. 1042. 

The upper owner has no right to gather the water on his own land which did 
not previously flow through a natural watercourse over the land of a lower owner 
and discharge it upon the land of the latter at a different place and in a different 
manner than before. Valentine v. Widm.au, 156-172, 135 N. W. 599. 

This section announces the law as it had been declared by the court and a 
swale or depression through and over which surface water runs is a watercourse 
even though it has no well-defined banks. Parizek v. Hinek, 144-563, 123 N. 
W. 180. 

The natural watercourse referred to in this section is not necessarily a channel 
with banks but if the surface waters usually flow in a well-defined channel it is 
such a watercourse as the statute contemplates. Cech v. Cedar Rapids, 147- 
247, 126 N. W. 166. 

The rule announced by the supreme court that, to constitute a natural water- 
course, it is not necessary that the flow of water through it should have been 
sufficient to wear a channel or canal, having definitely well marked sides and 
banks, will be followed by the federal courts in cases to which the state law 
is applicable. Chicago, B. & Q. R. Co. v. Board of Supervisors, (C. C. A., 182) 
Fed. 291. 

Even without a statute, the rule is in this state that the landowner cannot 
rightfully complain of a flow of surface water cast upon him by ordinary tile 
drains constructed on the land of an adjoining owner and discharging on such 
premises into a natural depression, although by such system of drainage the flow 
of water is accelerated. Obe v. Pattat, 151-723, 130 N. W. 903. 

A landowner has the right to conduct the surface water from his land into 
the courses or depressions extending into his neighbor's land which nature has 
provided and into which it had previously flowed. Lyon v. Sac County, 155- 
367, 136 N. W. 324. 

"Where the drainage, not wholly upon the owner's land, is carried into a ditch 
upon the land of aln adjoining owner with the agreement of the latter, there 
is immunity from liability for damages. The statute has served to relieve the 
situation from the hampering effect of a too literal reading and application 
of certain abstract statements of law contained in some of the earlier cases. 
Schlader v. Strever, 157 , 138 N. W. 1105. 

It is not necessary, to constitute a "natural water course," that the flow of 
water through it shall be sufficient to wear out a channel with defined sides and 
banks, but is sufficient if the surface water uniformly flows off over a given 
course having reasonable limitations; Miller v. Hester, 149 N. W. 93. 

This section is not limited by Chapter 117, 33 G. A., now known as sections 
1955 and 1956 of the supplement of 1913. Ibid. 

This section does not authorize a landowner to divert water collected in ponds 
on his land away from its natural flow by cutting through a natural barrier 
and discharging the water on or close to lower land of his neighbor. Kaufmann 
v. Lenker, 146 N. W. 823. 

This section vindicates the right to tile into a regular water course. Pascal 
v. Donahue, 152 N. W. 605. 

Sec. 1989-a54. Additional lands — procedure for annexation. That 
after the original establishment of a drainage district, as in this chap- 
ter provided, if the said board is satisfied that additional lands should 
be included within any drainage district, and that said lands are bene- 



70 IOWA DRAINAGE LAWS §§ 1989-a55-1989-a56 

fited by the improvement therein, and that said lands should have 
been included in said original district, then, in such case, the board 
may order the engineer to make a plat of said lands, with the eleva- 
tions thereof, and report thereon: and thereupon if said report be in 
favor of including additional lands, which shall be particularly de- 
scribed in the report, said board shall proceed in such matter as to said 
proposed annexed territory as in the original establishing of such dis- 
trict, including the fixing and levying of the special tax for benefits, and 
thereafter the said annexed territory shall be a part of said district, 
and governed in all respects as lands within the original district; or 
said annexation may be made and brought under the jurisdiction of 
the board for all of said purposes upon the petition of the owners 
of all the lands to be annexed. [33 G. A., ch. 118, § 22.] 

This statute is sufficient to authorize the annexation of territory to a district 
already formed even after the completion of the original enterprise. Bird v. 
Board of Supervisors, 154-692, 135 N. "W. 581. 

Where the original district has been created by the action of joint boards, ter- 
ritory annexed to the district, although exclusively within the limits of one 
county, is also under jurisdiction of such joint boards. Ibid. 

Sec. 1989-a55. Outlet acquisition of land for outside limits of 
county — procedure. In any case where the necessary outlet of any pro- 
posed drainage district is beyond the limits of the county wherein 
such district is projected, and in the judgment of the board of super- 
visors expense will be saved such district by avoiding joint proceedings 
with such adjoining county and by proceeding as hereinafter author- 
ized or whenever after establishment of any district it is found neces- 
sary to extend the main ditch beyond the limits of such district as 
established, in order to secure proper outlet therefor, the board of sup- 
ervisors shall have power to so extend such outlet and to use the gen- 
eral funds of the district for such purposes; and generally such board 
of supervisors shall have full power to treat with and to make fair and 
equitable agreements with any land owner, any other drainage district, 
ditching organization, corporation or association within this state, 
whether the same may be acting under this or any other law, touching 
any work in which such districts may be interested, or which may 
facilitate the flow of the waters from the lands within such district or 
the flow of waters from the lands lying above said district, through the 
ditches of such district. Where such drainage district shall find it 
necessary to acquire real estate for such outlet purposes the board 
of supervisors may proceed in the county where said real estate is 
located to condemn the same under the provisions of title ten, chapter 
four of the code, and the amendments thereto, relating to the taking 
of private property for works of internal improvement. [33 G. A., ch. 
122, § 1.] 

Sec. 1989-a56. Pending litigation not affected. Nothing contained 
in this act shall be held to affect pending litigation or any proceedings 
heretofore had under the laws hereby amended. [34 G. A., ch. 87, 
§8.] 



§§ 1989-a57-1989-a60 IOWA DRAINAGE LAWS 71 

Sec. 1989-a57. Claims of subcontractors — filing — priority. Every 
mechanic, laborer, or other person who as subcontractor, shall perform 
labor upon or furnish materials for the construction of any drainage 
ditch provided for in this chapter, shall have a claim against the funds 
provided for the payment of said ditch and improvements for the value 
of such services and material not in excess of the amount of the con- 
tract price for which no warrants shall have been issued at the time 
of the filing of said claim. Such claim shall be made by filing with the 
county auditor an itemized sworn statement of the demand at any time 
after the performance of the labor or furnishing of the material, but 
within thirty days from and after the completion of the contract, and 
such claims shall have priority in the order in which they are filed, 
provided that the country auditor shall not issue warrants in excess of 
eighty per cent, of the contract price until thirty days after the com- 
pletion of the contract. Provided further, that neither the county 
auditor, nor the county, nor the drainage district shall be liable for 
any greater sum than the contract price, nor shall they or either of 
them be liable for the payment of the same before the time provided 
for in the principal contract. [35 G. A., ch. 155, § 1.] 

Sec. 1989-a58. Adjudication — attorney's fee. Any party in inter- 
est may cause an adjudication of the amount, priority and mode and 
time of payment of such claims by an equitable action in the district 
court in the proper county. In such action the court may assess a 
reasonable attorney's fee against the party failing, in favor of said 
drainage district or county. [35 G. A., ch. 155, § 2.] 

Sec. 1989-a59. Release of claim — contractor may file bond for. 

The contractor may at any time release such claim by filing with the 
county auditor of the county in which the drainage ditch is located, 
a bond for the benefit of such claimant in sufficient penalty and with 
sureties to be approved by said county auditor, conditioned for the 
payment of any sum which may be found due such claimant. Such 
contractor may prevent the filing of such claims by filing in a like man- 
ner a bond conditioned for the payment of persons who may De en- 
titled to file such claims. And actions may be brought on any such 
bond by any claimant within one year after his cause of action ac- 
crues, and judgment shall be rendered on said bond for the amount due 
such claimant. [35 G. A., ch. 155, § 3.] 

Sec. 1989-a60. Not retroactive — -pending litigation not affected. 

This act shall not be deemed retroactive nor affect pending litigation. 
[35 G. A., ch. 155, § 4.] 



72 IOWA DRAINAGE LAWS §§ 1989-a61-1989-a63 



TRANSFER OF CARE OF CERTAIN DRAINAGE DITCHES 
TO LOCAL BOARDS OF TRUSTEES. 

Sec. 1989-a61. Drainage district under trustees — procedure. That 
iu all drainage or levee districts heretofore established or which may 
be hereafter established and not containing a pumping station and cost- 
ing for establishment and construction one hundred thousand dollars or 
more and less than twenty-five per cent of which has been spent for 
tile construction, any three or more persons who own land within the 
district which has been assessed for benefits, may, after the completion 
of the construction work of such district file in the office of the county 
auditor or county auditors if the district is in more than one county a 
petition signed by a majority of the persons owning land within the 
district assessed for benefits and who in the aggregate own a majority 
of the number of acres of land assessed for benefits asking that such 
district be placed under the management and control of three trustees, 
who are owners of land assessed for benefits in the district and resi- 
dents of the county or counties in which the district is situated to be 
elected by the persons owning land assessed for benefits in such dis- 
trict, such trustees shall be agents for the property owners for the 
management of the business of the district but shall not be considered 
public officers. [36 G. A. (H. F. 600, §1.)] 

Sec. 1989-a62. Inter-county district — petition where filed. If the 

district is located in more than one county, the petition shall be pre- 
sented to the boards of supervisors of the several counties in which 
the district is located. [36 G. A. (H. F. 600, § 2.)] 

Sec. 1989-a63. Canvass of petition — election ordered — election 
board— election of trustees. Upon the filing of said petition, the board 
of supervisors shall, at their next regular meeting, canvass the same 
and if it shall be determined that the same is signed by a majority of 
all the persons owning land in said district that has been assessed for 
benefits, and owning, in the aggregate, a majority of the acres of land 
assessed for benefits in such district, the board of supervisors shall 
order an election to be held at some convenient place in the district, 
at some time not less than thirty days nor more than sixty days from 
the date of the canvass of said petition, for the election of said trus- 
tees, and shall name from the residents of the district owning land 
assessed for benefits three judges and two clerks of election and shall 
cause notice of said election, together with the time and place of hold- 
ing same, to be published in the county in which the district is 
situated, in which the official proceedings of the board of supervisors 
are published and if any district is located in more than one county, it 
shall be published in one such newspaper in each county. If the dis- 
trict is located in more than one county, the boards of the several 
counties shall meet in joint session as soon as possible after the peti- 
tion is filed and canvass same in the same manner and for the same 
purpose as would be done by one board if in one county, and if the pe- 



§§ 1989-a64-1989-a69 IOWA DRAINAGE LAWS 73 

tition is found to contain the names of a majority of the owners owning 
a majority of the area of the district, the joint boards shall call an 
election and perform all the same duties that would be discharged 
by one board if the district was located wholly within one county. 
[36 G. A. (H. F. 600, § 3.)] 

Sec. 1989-a64. Canvass of vote — certification of result— certifi- 
cates of election. .On the date designated for said election, the polls 
shall open at eight o'clock. A. M. and remain open until seven o'clock 
P. M. and the judges of election shall canvass the vote and certify 
the result to the county auditor or auditors with whom the petition 
was originally filed and deposit the ballots cast and the poll books 
showing the names of the voters, with the county auditor of that 
county having the greatest part of the acreage of such district and such 
county auditor shall issue certificates to the trustees of their election. 
[36 G. A. (H. F. 600, § 4.)] 

Sec. 1989-a65. Tenure of office. The trustees so elected, shall 
hold office until the fourth Saturday in January next succeeding their 
election and until their successors are elected and qualified and on the 
third Saturday in the Januarj^ next succeeding their original election, 
an election shall be held at which three trustees shall be chosen, one 
for one year, one for two years, and one for three years, and each 
shall qualify and enter upon the duties of his office on the fourth 
Saturday of the same January. [36 G. A. (H. F. 600, § 5.)] 

Sec. 1989-a66. Tenure of office. The term of the trustee shall be 
three years and each shall serve until his successor is elected and 
qualified. [36 G. A. (H. F. 600, §6.)] 

Sec. 1989-a67. Time of elections. On the third Saturday in Jan- 
uary in each year, an election shall be held to choose a successor to 
the trustee whose term is about to expire, and fill any vacancies that 
may have occurred since the last election. ]36 G. A. (H. F. 600, 
§7.)] 

Sec. 1989-a68. Vacancies. If any vacancy occurs in the member- 
ship of the board between the annual elections, the remaining mem- 
bers of the board shall have power to fill such vacancies by appoint- 
ment of persons having the same qualifications as themselves, and 
the persons so appointed shall qualify in the same manner and hold 
office until the next annual election and until their successors are 
elected and qualified, and in the event all places on the board be- 
come vacant, then a new board shall be appointed by the county 
auditor of the county in which the greater portion of the acreage 
of the district is located and the persons appointed by him shall hold 
office until the next annual election and until their successors are 
elected and qualified. [36 G. A. (H. F. 600, § 8.)] 

Sec. 1989-a69. Elections — how conducted. The trustees shall act 
as judges of election; the clerk of the board shall act as one of the 
clerks and some taxpayer of the district shall be selected by the board 
to act as another clerk. The trustees shall fill all vacancies in the 
election board. The result of all elections shall be certified to the 



74 IOWA DRAINAGE LAWS §§ 1989-a70-1989-a73 

county auditor or the several county auditors if the district is located 
in more than one county. [36 G. A. (H. F. 600, § 9.)] 

Sec. 1989'-a70. Organization — -selection of clerk. As soon as the 
trustees have qualified, they shall organize by electing one of their 
own number as chairman and may select some other taxpayer of the 
district as clerk of the board and the clerk shall serve until the fourth 
Monday in January succeeding his election and qualification unless 
sooner discharged by the board. [36 G. A. (H. F. 600, § 10.)] 

Sec. 1989^-a71. Trustees — bond — duties — powers — readjustment of 
assessment — expenses. The trustees shall qualify by giving a bond in 
the sum of five thousand dollars each, conditioned for the faithful 
discharge of their duties, signed by two or more sureties to be ap- 
proved by the county auditor of the county in which the greater por- 
tion of the area of the district is located but this bond shall be 
subject to be increased by order of the board or boards of supervisors 
under whose supervision the change to the trustee system was made. 
Upon the election and qualification of the trustees, they shall have con- 
trol and supervision of such district in the same manner and with all 
the same powers that are conferred on the board or boards of supervi- 
sors for the control and supervision of drainage and levee districts 
under the drainage and levee laws of Iowa and shall promptly and 
faithfully look after all business of the district. If a re-classification 
and readjustment of the assessment of property should ever be made, it 
shall be done under the board or boards of supervisors in the same 
manner as the original assessment. All costs and expenses incurred in 
making the change to the trustee system and all costs and expenses 
necessary to carry out the powers and duties hereby conferred upon 
said trustees shall, upon certificate of the trustees to the board or 
boards of supervisors of the amount of the same necessary therefor 
be levied and collected upon * the land in said district in the same 
manner as taxes are levied and collected upon such lands for drainage 
purposes. [36 G. A. (H. F. 600, §11.)] 

Sec. 1989-a72. Trustees to report proceedings to auditor. Such 
trustees shall, from time to time, and with reasonable promptness, fur- 
nish the auditor of each county in which any part of said district is 
situated, with a correct record of their acts and proceedings, which 
statement must be signed by the chairman and the clerk of the board 
and shall be recorded by the auditor in the drainage record, and same 
shall be published as a part of the proceedings of the board of super- 
visors. [36 G. A. (H. F. 600, § 12.)] 

Sec.l989-a73. Voting by agent — votes cast in proportion to assess- 
ment. In all elections held under this act, the owner of each tract of 
land, if he or she is over twenty-one years of age, shall, without re- 
gard to sex, and any railroad or corporation owning property in such 
district and assessed for benefits shall, be entitled to at least one vote 
and anyone whose land is assessed for benefits in a sum exceeding ten 
dollars shall be entitled to one vote for each ten dollars of the original 
assessment for benefits against the land actually owned by him in such 
district at the time of the election and which has been assessed for 



§§ 1989-a74-1989-a77 IOWA DRAINAGE LAWS" 75 

benefits in such district, but in order to have his ballot counted for 
more than one vote he shall write his name upon his ballot. The vote 
of any resident of a county in which the district is located in whole or 
in part must be cast in person. The vote of any owner of land includ- 
iDg railroads and corporations assessed within the district who is not a 
resident of a county in which the district is located in whole or in part 
may have his or its vote cast by some resident taxpayer of the district 
or agent of such railroad or corporation who is authorized by a power 
of attorney signed and acknowledged by such non-resident land owner 
or duly authorized officer of such railroad or corporation to cast the 
vote for him, but the power of attorney in such case shall be filed with 
the county auditor. [36 G. A. (H. F. 600, §13.)] 

Sec. 1989-a74. Compensation. The compensation of the trustees 
and the clerk of the board is hereby fixed at three dollars per day and 
necessary expense to be paid out of the funds of the drainage district 
for each day necessarily expended in the transaction of the business of 
the district, but no one shall draw compensation for services as trus- 
tee and as clerk at the same time. [36 G. A. (H. F. 600, § 14.)] 

Sec. 1989-a75. Certified copies of assessment to determine voting 
power. Before any election is held, the election board shall obtain 
from the county auditor or auditors a certified copy of so much of the 
record of the establishment of such drainage district and the assess- 
ment of lands therein as will show what lands are embraced within 
such district, the classification of each tract and the amount of assess- 
ment levied against each tract for benefits in such district and the 
name of the person against whom same was so assessed for benefits 
and such certified record shall be kept by such trustees for use in sub- 
sequent elections and they shall, from time to time, procure from the 
county auditors additional certificates showing changes of title of lands 
assessed for benefits in the district and the name of the new owner, 
and anyone who has acquired ownership of assessed lands since the 
latest certificate from the auditor shall be entitled to vote for such 
lands if he presents to the election board for its inspection at the time 
he demands the right to vote the original recorded deed or a duly cer- 
tified copy of the record of the deed under which he holds title. [36 
G. A. (H. F. 600, § 15.)] 

Sec. 1989-a76. Conflicting acts repealed. All acts or parts of acts 
in conflict with this act are hereby repealed. [36 G. A. (H. F. 600, § 
16.)] 

Sec. 1989-a77. Interstate drainage — co-operation with authorities 
of sister state — procedure. Whenever proceedings for the drainage of 
lands within this state and bordering upon the state line are had and 
the total cost, including all damage, of constructing the improvement 
in this state has been ascertained by the authorities of this state, and 
the engineer in charge, before the final establishment of the district, 
reports that the establishment and construction of such improvements 
ought to be jointly constructed with like proceedings for the drainage 
of adjoining lands in an adjoining state and that drainage proceedings 
are pending in such adjoining state for the drainage of such adjoining 



76 IOWA DRAINAGE LAWS §§ 1989-a78-1989-a79 

lands, then and in that case the said authorities of this state may enter 
an order continuing the hearing on the establishment of such district 
to the named date, of which all parties shall take notice, but shall 
have power, whenever the total cost, including damages, of construct- 
ing the improvement in such other states has been ascertained by the 
authorities of such other state, to enter into an arrangement or tenta- 
tive agreement as to the separate amounts which the authorities of 
each state should in equity pay toward the construction of the joint 
undertaking. When such amount is thus determined, the authorities 
of this state shall enter the same in the minutes of their proceedings 
and shall proceed therewith as though such amount had been origin- 
ally determined by them as the cost of constructing the improvement 
in this state. 

When the bids for construction are opened, unless the construction 
work on each side of the line can go forward independently and with- 
out undue friction when let to contractors, no contract shall be let by 
the authorities in this state, unless by joint conference of the authori- 
ties of both states, the acceptance of a bid or bids for the construction 
of the whole project is first jointly agreed upon, but the contract or 
contracts for the construction of that portion of the improvement 
within this state shall be entirely distinct and separate from the con- 
tract or contracts let by the authorities of the neighboring state; pro- 
vided that the contract or contracts for the construction of the work 
within this state shall not exceed an amount equal to the amount of 
the benefits assessed in this state less the damages allowed in this 
state and less the incidental expenses in this state. [36 G. A. (H. F. 
576, § 1.)] 

Sec. 1989^a78. Conditions precedent to letting contract or issuing 
bonds. No contract shall be let until the improvement shall be condi- 
tionally and finally established in both states, and after final adjust- 
ment in both states of damages and benefits both as between individ- 
uals and lands. No bonds shall be issued until all litigation in both 
states arising out of said proceedings, has been finally terminated by 
actual trial and hearing, or by the expiration of all right of appeal. 
[36 G. A. (H. F. 576, § 2.)] 

Sec. 1989-a79. Repairs and improvements. In so far as applicable, 
this act shall also apply to the repair and improvement of any work 
of drainage constructed under its provisions. [36 G. A. (H. F. 576, 
§ 3.)] 



§§ 1989-b-1989-b3 IOWA DRAINAGE LAWS 77 



THE DRAINAGE OF PUBLIC HIGHWAYS. 

Section. 1989-b. Drainage of highways — survey and report. That 
whenever in the opinion of the board of supervisors it is necessary to 
drain any part of any public highway under its jurisdiction and the 
land abutting upon or adjacent thereto in order that said highway 
may be preserved and improved, and made more convenient, it may 
direct the county engineer to make a survey and report on any part of 
said highway. In directing the engineer to make such survey the board 
shall specify in a general way what highway or part thereof they desire 
surveyed for the purpose of draining the same. [36 G. A. (H. F. 217, 
§ 1.)] 

Sec. 1989-bl. Survey — what it may include— names of landowners 

plans. Upon receiving such direction the county engineer shall make 

a survey and report. He shall not be confined to the exact locality 
included in the direction of the board of supervisors. His survey and 
report may include any portion of the county road system Or any por- 
tion of the township road system, or may include a portion of each 
of said systems. He shall include in his report a specific designation 
of such drainage district as in his opinion is necessary to be estab- 
lished in order to better preserve and improve said highway and to 
render the same of greater use and convenience. The report shall be 
made at the earliest reasonable time, and if .his report recommends 
the establishment of a drainage district, it shall also include the 
names of the owners of all land situated within said district, as 
shown by the transfer books in the office of the county auditor. Said 
report shall also include the plans and specifications for doing the 
work recommended and the estimated cost thereof. [36 G. A. (H. F. 
217, § 2.)] 

Sec. 1989-b2. Notice — objections — damages — waiver. Upon the 
filing of said report, plans and specifications, the board of supervisors 
shall, if they deem it advisable to further proceed in said matter, 
cause notice to be given as hereinafter provided of their intention to 
establish such highway drainage district and of the report of the 
highway engineer thereon, and that they will at a specified time and 
place, hold a hearing for the purpose of determining the amount of 
damages which shall be allowed by reason of the construction of such 
highway drainage improvement and the advisability of establishing 
such drainage district, and that all objections to the establishment of 
such district and all claims for damages occasioned by the construc- 
tion of such improvements, must be filed with the county auditor not 
less than five days before said hearing or the same will be waived. 
[36 G. A. (H. F. 217, § 3.)] 

Sec. 1989-b3. Notice — how given. The notice herein provided for 
shall be given by publishing said notice once each week for two con- 
secutive weeks in one or more of the official papers of the county, the 



78 IOWA DRAINAGE LAWS §§ 1989-b4-1989-b6 

last of said publications to be not less than ten days prior to said 
hearing. [36 G. A. (H. F. 217, § 4.)] _ 

Sec. 1989-b4. Determinations by board — adjournment — establish- 
ing district. Should the board on the date fixed for such hearing be 
unable for any reason to hold such bearing, they may adjourn the 
same to a specified later date and place, of which all parties shall take 
notice. On such hearing the board shall first determine whether the 
establishment of such highway drainage district will be conducive to 
the public convenience and to the preservation and improvement of 
said highway, and if they so determine they shall make such deter- 
mination of record and shall thereupon proceed to a determination 
of the amount of damages to be allowed by reason of the construction 
of such highway drainage improvement. If in the opinion of said 
board, the damages so allowed are not excessive, they may establish 
such district. [36 G. A. (H. F. 217, § 5.)] 

Sec. 1989-b5. Commission — apportionment of cost — county, town- 
ship and district to share costs — costs how paid. If said district is 
established, the board of supervisors shall appoint the highway engi- 
neer and two other resident freeholders of the county not residing 
within said drainage district as a commission to determine the propor- 
tion of the cost of such improvement to be paid on account of the 
public highway and to assess upon the lands within such district that 
portion of the cost of said improvement to be paid by special assess- 
ment. Said commission shall, within ten days after being appointed, 
begin the examination of the lands and public highways within said 
district, and as soon as possible shall make a report to the board of 
supervisors; first, as to the amount, if any, which should be paid by 
the county on account of the county road system; second, the amount, 
if any, which should be paid by the township or townships on ac- 
count of the township road system, and third, the amount, if any, 
which each forty acre tract or less within said district shall pay. In 
making such apportionment the commissioners shall follow the meth- 
od as nearly as possible now provided for by law in assessing benefits 
for the construction of levees, ditches, drains and water courses under 
chapter two-a, supplement to the code, 1913. The amount fixed by 
said commission to be paid upon the county road system shall be pay- 
able out of the county road funds and the amount fixed by said com- 
mission to be paid upon the township road system shall be payable 
out of the township drainage fund. All assessments made hereunder 
may be paid on the installment plan as provided by section nineteen 
hundred eighty-nine-a twenty-six, supplement to the code, 1913. [36 
G. A. (H. F. 217, § 6.)] 

Sec. 1989-b6. Report — hearing — levy — duty of auditor — collec- 
tion. When the report of said commission is filed, as provided, the 
board of supervisors shall proceed to fix a time for hearing thereon, 
and shall cause notice to be served upon each person whose name ap- 
pears as owner and also upon the person or persons in actual occu- 
pancy of any such land in the -time and manner provided for the es- 
tablishment of a highway drainage district. Such hearing may be ad- 



§§ 1989-b7-1989-bll IOWA DRAINAGE LAWS 79 

journed from time to time, of which all parties should take notice. 
At such hearing the board shall have the power to confirm such as- 
sessments or to modify the same, as in their judgment may seem just 
and equitable, and upon the final determination of the respective 
amounts shall levy and assess the amount to be paid on account of 
the county road system to the county; that part to be paid on ac- 
count of the township road system to the township or townships and 
the remainder upon the lands within said districts, and the county 
auditor shall place said levy and assessment so made against the lands 
within said district upon the first succeeding tax books, and the same 
shall be collected at the same time and in the same manner as assess- 
ments are payable and collected under chapter two-a of title ten of 
the supplement to the code, 1913. [36 G. A. (H. F. 217, § 7.)] 

Sec. 1989-b7. Special assessments to be advanced. The board of 
construction on such improvement, shall advance out of the county 
road fund that portion to be collected by special assessment, the 
amount so advanced to be replaced in said county funds as the special 
assessments are collected. [36 G. A. (H. F. 217, § 8.)] 

Sec. 1989*b8. Appeals — how taken — how tried — abandonment of 
plan. Any person aggrieved by the decision of the board of supervis- 
ors in establishing said highway drainage district or in the fixing of 
amount of damages allowed to anyone by reason of the taking of land 
for the construction of said improvement, or in the amount assessed 
on said lands, shall have the right to appeal to the district court in 
the same manner in which appeals are now taken under chapter two-a, 
title ten of the supplement to the code, 1913. All appeals shall be 
tried at the first succeeding term of court in said county after the 
taking of said appeal, provided either party demands such trial, un- 
less for sufficient cause the cause is continued by the court. The ap- 
peal to the district court from the establishment of said drainage dis- 
trict or from the order fixing the assessments, shall be tried in equity. 
An appeal from any. award of damages shall be tried at law. Should 
the amount of damages for the taking of land aforesaid as deter- 
mined in the district court, be adjudged by the board of supervisors 
to be excessive, they shall proceed no farther in carrying out said 
improvement. [36 G. A. (H. F. 217, § 9.)] 

Sec. 1989-b9. Townships not within district may contribute. The 

township trustees of any township, whether any portion of the lands 
of said township are within said drainage district or not, shall have 
the right to contribute to such improvement such sum out of the 
township 'road funds as may appear to them to be equitable. [36 
G. A. (H. F. 217, § 10.)] 

Sec. 1989-blO. Costs in case of abandonment. After the coming 
in of said engineer's report, if said proceedings are dismissed or 
said improvement be abandoned, any costs of such proceeding up to 
the time of dismissal or abandonment, shall be paid out of the coun- 
ty road fund. [36 G. A. (H. F. 217, § 11.)] 

Sec. 1989-bll. Engineering costs not included. Improvements 
herein contemplated shall be constructed by the board of super- 
visors under the supervision and expert knowledge of the county 



80 IOWA DRAINAGE LAWS §§ 1989-bl2-698 

engineer, and no charge for the services of the county engineer shall 
be included in the cost of such improvement. [36 G. A. (H. F. 217, 
§12.)] 

Sec. 1989-M2. Deficit — how paid. Should the cost of construct- 
ing the improvement herein provided for be in excess of the total 
amount received from the board of supervisors and from the town- 
ship trustees and the amount realized from special assessments, the 
board of supervisors shall make a new assessment to cover the un- 
paid balance of the said cost, using as a basis for such re-assessment 
the same percentages as were used by the commission in making the 
first assessment and shall make an additional levy on the lanus 
within said district in accordance with such re-assessment, and the ad- 
ditional amount thus charged against the county road system or 
the township road system shall be paid out of the same funds as 
was the original assessment. [36 G. A. (H. F. 217, § 13.)] 

Sec. 1989-bl3. Maintenance. The improvement, when completed, 
shall remain under the jurisdiction of the board whose duty it shall 
be to keep the same in repair and for such purpose shall make ad- 
ditional appropriations from the county road funds and additional 
levies in the same proportion as originally determined. [36 G. *A. 
(H. F. 217, § 14.)] 

OTHER PROVISIONS OF THE LAW RELATING TO 

DRAINS. 

Sec. 698. Filling or draining lots. *They shall have power to 
cause any lot of land within their limits, on which water at any 
time becomes stagnant, to be filled up or drained in such manner 
and within such time as may be directed by resolution of the coun- 
cil. Service of a copy of said resolution shall be made upon the 
owner of such lot, if residing in the county where the same is situ- 
ated; otherwise publication of such notice shall be made once each 
week for two consecutive weeks in a daily or weekly newspaper 
published within such city or town, or, if there be no such news- 
paper, then by publication of the same in a newspaper published 
in said county. On the failure of such owner to comply with such 
directions within the time fixed, it may be done by said city or town, 
and the costs and expenses thereof assessed against said lot, which 
shall be a debt due to said corporation from the owner of said lot, 
and shall, moreover, from the time of the adoption of such resolu- 
tion, be a lien thereon as provided in case of special assessments. [C. 
'73, § 480; R., § 1070.] 

The city has no authority to order such lots to be filled to grade where it 
appears that a much less amount of filling would prevent stagnant water stand- 
ing thereon. Bush v. Dubuque, 69-233. 

The word "lot" means any portion, piece or division of land. Buell v. Ball, 
20-282. 

Service by publication is sufficient under this section. Personal service is not 
necessary. Independence v. Purdy, 46-202. 



♦The word "they" refers to cities and towns. Sec. 952 of the Supplement to 
the Code '13 provides that sections 698 and 699 shall apply to cities acting 
under special charter. 



§§ 699-1528 IOWA DRAINAGE LAWS 81 

This section relates to water standing in depressions or pools and not to 
large areas of low, wet or swampy land. The authority of the council is limited 
to obviating the nuisance occasioned by the standing of stagnant water. Aldrich 
v. Paine, 106-461. 

Sec. 699. Drainage Preserved. They shall have power to require 
the owner or lessee of any lot or tract of ground within their limits, 
extending into, across or bordering upon any hollow or ravine which 
constitutes a drain for surface water, or a water course of any kind, 
who shall, by grading or filling such lot or tract of ground, obstruct 
the flow of water through such water course, to construct through 
such lot or land a sufficient drain or passageway for water, within 
such time as the council may designate, notice of which action 
shall be given as in the preceding section. Upon the failure of such 
owner or lessee to construct such drain or passageway within the 
time so fixed, the city or town may construct the same, and assess 
the costs and expenses thereof on such lot or tract of ground, and 
the same shall be a lien thereon as provided in case of special assess- 
ments. [16 G. A., ch. 116, § 18.] 

The provisions of this section are intended to restore the natural course for 
surface or other water in case it has been obstructed by grading or filling. 
Aldrich v. Payne, 106-461, 76 N. W. 812. 

The city can not require the owner of property abutting on a street to con- 
struct drains to carry off the surface water accumulated by improvements of the 
street. The provisions of this section relate to natural water courses. Hoffman 
v. Muscatine, 113-332, 85 N. W. 17. 

(Only that Part of Sec. 1304, Supplemental Supplement 1915, referring tc drainage bonds 

is given here.) 

Sec. 1304. Exemptions. The following classes of property are 
not to be taxed: 

1. The property of the United States and this state, including 
university, agricultural college and school lands; the property of 
a county, township, city, town or school district or militia company, 
when devoted entirely to public use and not held for pecuniary 
profit; municipal, school, and DRAINAGE BONDS or certificates here- 
after issued by any municipality, school district, drainage district or 
county within the state of Iowa; public grounds, including all places 
for the burial of the dead, crematoriums, the land on which they 
are built and appurtenant thereto not exceeding one acre, so long 
as no dividends or profits are derived therefrom; fire engines and 
all implements for extinguishing fires, with the grounds used ex- 
clusively for their buildings and meetings of the fire companies; no 
deduction from the assessment of the stock of any bank or trust 
company shall be permitted because of such bank or trust company 
holding such bonds and certificates as may be exempted above; 

Sec. 1528. Powers and duties of trustees. That section fifteen 
hundred twenty-eight of the supplement to the code, 1907, is here- 
by repealed and the following enacted in lieu thereof: 

"The township trustees of each township shall meet on the first 
Monday in February and on the first Monday in April, or as soon 
thereafter as the assessment book is received by the township clerk 
6 



82 IOWA DRAINAGE LAWS § 590 

and on the first Monday in November in each year. At the February 
meeting said trustees shall select a superintendent of dragging and 
employ a road superintendent. At the April meeting said trustees 
shall determine: 

1. The rate of property tax to be levied for the succeeding year 
for the repair of the roads, culverts and bridges and for guideboards, 
plows, scrapers, road drags, tools and machinery adapted to the 
repair of the roads, culverts and bridges and for the destruction 
of noxious weeds in public highways and other public places and for 
the payment of any indebtedness previously incurred for road pur- 
poses, and levy the same, which shall not be more than four mills 
on a dollar on the amount of the township assessment for that year, 
which when collected, shall be expended under the direction ana 
order of the township trustees; and they may determine and certify 
to the board of supervisors a tax on the assessed property in the 
township of not exceeding five mills on a dollar of such assessment, 
which shall be applied, or so much thereof as may be necessary, in 
paying DRAINAGE taxes heretofore levied and still unpaid or for 
the payment of any DRAINAGE assessments that may be hereafter 
levied against the township on account of benefits to highways under 
the provisions of section sixteen of chapter one hundred eighteen of 
the acts of the thirty-third general assembly of Iowa, and the balance 
of such levy or the whole thereof in case there be no such drainage 
taxes due from the township, may be applied in paying the expense 
of draining highways of the township or in co-operating with those 
owning land in the township in securing the drainage of such high- 
ways; but in the event that the amount to be expended in any one 
place exceeds the sum of fifty dollars, the township shall not pay 
more than its just proportion of the benefits to be ascertained by a 
competent civil engineer and duly set forth in his report approving 
of such drainage, which report shall be filed with the township clerk 
before any money is paid out for such drainage. 

2. The amount that will be allowed for a day's labor done by a 
man, and by a man and team, on the road. To certify to the board 
of supervisors the desire for an additional road tax, not to exceed 
one mill to be levied in whole or in part by the board of supervisors, 
as hereinafter provided. At the November meeting they shall settle 
with the township clerk and with all parties with whom contracts 
have been made for work in repairing or dragging of the roads." [34 
G. A., ch. 24, § 8; 33 G. A., ch. 96, § 5.] [29 G. A., eh. 64, § 1; 
29 G. A., ch. 53, § 3; 26 G. A., ch. 43; 25 G. A., ch. 22; C. '73, §§ 
969, 971; R. §§ 880, 891, 895; C. '51, § 568.] 

Sec. 590. Compensation of trustees. Township trustees shall re- 
ceive: 

1. For each day's service of eight hours necessarily engaged in 
official business, to be paid out of the county treasury, two dollars 
each, except in townships having a population of thirty thousand or 
over, and situated entirely within the limits of a city acting under 
special charter, such compensation shall be three dollars per day; 



§ 1530 IOWA DRAINAGE LAWS * 83 

2. For each day engaged in assessing damages done by tres- 
passing animals, one dollar each, to be paid as other costs are in 
such cases; 

3. When acting as fence viewers, or viewing or locating any 
ditch or drain, or in any other case where provision is made for their 
payment otherwise, they shall not be paid out of such treasury, but 
in all such cases their fees shall be paid in the first instance by the 
party requiring their services, and they shall append to the report 
of their proceedings a statement thereof, and therein shall direct 
who shall pay said fees, and in what sums respectively; and the party 
having so advanced any such fees may have his action therefor 
against the party so directed to pay the same, unless, within ten 
days after demand by the party entitled thereto, he shall be re- 
imbursed therefor. [33 G. A., ch. 39, § 1; 16 G. A., eh. 35; C. '73, 
§ 3808; R. § 4156; C. '51, § 2548.] 

Sec. 1530. County road and. drainage funds — how levied and paid 
out. That the law as it appears in section fifteen hundred thirty 
of the supplement to the code, 1907, be and the same is hereby re- 
pealed and the following enacted in lieu thereof: 

"The board of supervisors of each county shall, at the time of 
levying taxes for other purposes, levy a tax of not more than one 
mill on the dollar of the assessed value of the taxable properties in 
its county, including all taxable property in municipalities, which 
shall be collected at the same time and in the same manner as other 
taxes and be known as the county road fund and be paid out only 
on the order of the board of supervisors for the purchase of road tools 
or machinery or for work done on the roads in the county in such 
places as it shall determine; provided that on written petition of a 
majority of the electors who are freeholders of any township in 
any county the board of supervisors may levy an additional mill in 
said township to be expended by said board of supervisors on roads 
in the township where the same is levied; provided further that the 
board of supervisors of any county may levy an additional tax of not 
more than one mill on the dollar of the taxable property in the 
county, including all taxable property in cities and incorporated 
towns outside the limits of cities of the first class and cities acting 
under special charter, which tax shall be collected at the same time 
and in the same manner as other taxes and be known as the coun- 
ty drainage fund and be paid out only on the order of the board 
for drainage of highways and paying drainage assessments hereto- 
fore levied for benefits to highways in the county or that may here- 
after be levied for such purposes. One half of the county road fund 
arising from the property within any municipality shall be paid over 
by the county treasurer to the treasurer of the municipality in the 
same manner as other municipal taxes and shall be expended on 
the roads or streets within such municipality by and under the di- 
rection of the council or commission. The county treasurer shall re- 
ceive the same compensation for collecting this tax as he does for 
collecting corporation taxes, except as hereinafter provided. Taxes 



84 IOWA DRAINAGE LAWS §§ 1556-1560-b 

already collected under section fifteen hundred thirty of the sup- 
plement to the code, 1907, and in the hands Qf the county treasurer 
shall be paid over to the treasurer of the municipality in the same 
manner as other municipal taxes. Moneys so collected shall not be 
transferable to any other fund nor used «for any other purpose. The 
board of supervisors shall levy such additional sum for the benefit, 
of such township as shall have certified a desire for such additional 
levy as provided for in section fifteen hundred twenty-eight of this 
chapter. [34 G. A., eh. 24, § 6; 33 G. A., ch. 97, § 1.] [32 G. A., 
ch. 67; 31 G. A., ch. 56; 29 G. A., ch. 65, § 1; 25 G. A., ch. 22; 
20 G. A., ch. 200, § 1.] 

Sec. 1556. Shade trees — timber — drainage. The road supervisor 
shall not cut down or injure any tree growing by the wayside which 
does not obstruct the road, or which stands in front of any town lot. 
inclosure or cultivated field, or any ground reserved for any public 
use*, and shall not enter upon any lands for the purpose of taking 
timber therefrom without first receiving permission from the owner 
or owners of said lands, nor destroy or injure the ingress or egress 
to any property, or turn the natural drainage of the surface water 
to the injury of adjoining owners; but it shall be the duty of the 
supervisor to use strict diligence in draining the surface water from 
the public road in its natural channel, and to this end he may enter 
upon the adjoining lands for the purpose of removing obstructions 
from such natural channel that impede the flow of such water. [26 
G. A., ch. 49; 21 G. A., ch. 87, § 1; 16 G. A., ch. 28, § 1; C. '73, 
§ 989; R., § 901; C. '51, § 587.) 

Highway supervisors have some authority in determining how roads are to be 
improved and within the scope of a reasonable discretion their plans ought 
not to be interfered with. Heydon v. Whitaker, 156-87, 135 N. W. 361. 

But the statute specifically provides that ingress or egress to property or the 
natural drainage of the surface water shall not be interfered with to the injury 
of adjoining owners. Ibid. 

Township authorities have authority, and it is their duty under this statute, 
to provide for the drainage of surface water on the highway even though in so 
doing their road ditches and culverts tend to converge the surface water within 
a more closely confined channel as it crosses the land of an abutting property 
owner. Hayes v. Oyer, 146 N. W. 857. 

Sec. 1560-a. Open ditches and water breaks — construction pro- 
hibited. It shall be unlawful for any person, firm, corporation, road 
superintendent, township trustee, or board of supervisors, to con- 
struct open ditches, water breaks, or other obstructions of like char- 
acter, on the traveled portion of any public highways, and such ob- 
struction is hereby declared a nuisance and removable as such. [34 
G. A., ch. 71, § 1.1 

Sec. 1560-b. Removal — duty of officers. It shall be the duty of 
the township trustees, board of supervisors or other officer responsi- 
ble for the care of public highways in each township or county in 
this state to remove all open ditches, water breaks, and such like 
obstructions mentioned in section one hereof, from the traveled 
portion of public highways within their several townships or coun- 



§§ 1560-c-2Q24-a IOWA DRAINAGE LAWS 85 

lies, and to employ labor for this purpose in the same manner as for 
the repair of highways, and for neglect or failure to perform their 
work they shall be subjected to the penalties of this act. [34 G. A., 
ch. 71, § 2.] 

Sec. 1560-c. Failure to act — penalty. Any person, firm, or cor- 
poration violating any of the provisions of this act, or any township 
trustee, road superintendent, inspector, member of the board of su- 
pervisors, or other officer, who neglects or fails to perform the duties 
incumbent upon him under the provisions of this act, or violates 
the provisions hereof, shall be guilty of a misdemeanor and shall 
be punished by a fine not exceeding ten dollars. [34 G. A., ch. 71, 
§3.] 

Sec. 1560-d. Jurisdiction — justice of peace. In case of prosecu- 
tion for any violation of the provisions of this act, any justice of 
the peace within the county in which the violation is alleged to 
have been committed shall have authority to decide whether or 
not the obstructions, of which complaint is made, are . of a nature 
to unreasonably interfere with the passing of vehicles, or can be 
removed without too much expense, and with a reasonable consid- 
eration of the topography of the locality. [34 G. A., ch. 71, § 4.] 

Sec. 1560-e. Not applicable to cities and towns. The provisions 
of this act shall not apply to roads or streets in incorporated cities 
or towns. [34 G. A., ch. 71, § 5.] 

Sec. 2014. Channels or ditches along right of way. In any case 
where it would have the right to dig a channel or cut a ditch, so 
as to change and straighten the course of a stream or water course 
too frequently crossed by such road, for the purpose of protecting 
the right of way and road-bed, or promoting safety and convenience 
in operation of the road, it may, if it can not agree with the owners 
of the land to be crossed by such channel or ditch, either as to its 
location or the price to be paid for land taken, condemn an amount 
sufficient and convenient for such purpose, in the same manner that 
lands for the right of way for the road-bed may be condemned; and 
such condemnation shall be made with the same rights of appeal 
as in other cases of condemnation of land for right of way uses. 
Nothing in this section shall give the corporation the right to change 
the course of any stream or water course where such right does not 
otherwise exist, nor to turn such stream or water course off from 
any cultivated meadow, or pasture lands, when it only touches such 
lands at one point, unless the owner or owners thereof consent to 
such diversion. [18 G. A., ch. 191.] 

Sec. 2024-a. Institutions of United States — state to condemn land 
for. Whenever in the opinion of the governor of the state, the public 
interest requires the laying or construction of any drain, sewer or 
aqueduct, and the acquisition of an easement therefor, upon or 
across private property, or the taking of any real estate for the mak- 
ing or construction of any drain, sewer or aqueduct, or for rifle ranges, 
exercise, drill or parade grounds, yards, walls, buildings or other im- 



86 IOWA DRAINAGE LAWS §§ 2024-b-2900-c 

provements or conveniences for the use or benefit of any fort, arsenal, 
military post or other institution of the United States, upon or across 
private property, the same proceedings may be had in the name of the 
state as are provided for the taking of private property for works of 
internal improvement by chapter four, # title ten, of the code, and the 
proceedings shall be conducted by the county attorney of the county 
in which the land is situated, whenever directed by the governor, or 
he may appoint some other person for that purpose. [29 G. A., eh. 
83, § 1.] 

Sec. 2024-b. Same — damages certified — how paid — conveyance of 
title. When the amount of the damages is finally determined, the 
sheriff or clerk, as the case may be, shall certify the amount thereof 
to the governor who shall, by an order endorsed thereon, direct the 
payment of the same, including all costs and expenses incurred, and 
the auditor of state shall issue a warrant on the treasury for the 
amount, which shall be paid out of such money as may have been 
deposited in the treasury by the United States, or by any person or 
persons for and on its behalf, and when paid to the sheriff or person 
entitled thereto, the governor and auditor of state are hereby au- 
thorized and instructed to convey the easement or real estate so taken 
and all of the rights of the state so acquired therein, to the United 
States, by good and sufficient deed of conveyance executed for, on 
behalf of and in the name of the state of Iowa, and thereupon the 
United States, through its proper officer or agent, may enter upon the 
premises and construct the desired work. [29 G. A., ch. 83, § 2.] 

MEANDERED LAKES AND LAKE BEDS. 

Sec. 2900-b. Repeal. The law as it appears in chapter two-3, 
title fourteen, of the supplement to the code, 1913, be and the same 
is hereby repealed; provided, however, that this repeal shall not ap- 
ply to any lake or lake bed, which, under authority of the executive 
council has been already drained or in the draining of which the 
sum of five hundred dollars has been in good faith expended or to 
lakes where the lake bed was, prior to January first, 1915, sold by the 
state under the provisions of said chapter, but no such excepted lake 
bed shall be hereafter sold by the state or leased for more than one 
year. [36 G. A. (S. F. 2, § 1.)] 

Sec. 2900-c. Highway commission to inspect lakes; — report ordered 
— requirements. The highway commission shall inspect and investi- 
gate the various lakes of the state effected by this act and classify 
them into three classes as follows, to wit: 

1. Lakes which should be preserved. 

2. Lakes which should be drained, the state retaining ownership of 
the lake bed. 

3. Lakes which should be ordered drained, and the lake beds sold. 
Said inspection and investigation shall be made and completed prior 

to January first, 1917, and full written report made for submission to 
the thirty-seventh general assembly upon convening and not later than 



§§ 2900-d-4805 IOWA DRAINAGE LAWS 87 

January fifteenth, 1917, which report shall contain the findings and 
recommendations of said commission covering the following matters: 

1. As to lakes to be preserved, a general statement as to the lake, 
the improvements required and the estimated cost thereof. 

2. As to lakes to be drained, the state reserving title, a general 
statement as to acreage of lake bed, cost of drainage and estimated 
value when drained and reasons for drainage rather than preserva- 
tion. 

3. As to lakes to be drained and beds sold, a general statement as 
to acreage, cost of drainage, value when drained, estimated price at 
which same should be sold and reasons for drainage and sale rather 
than preservation or drainage, the state retaining title. [36 G. A. (S. 

F. 2, § 2.)] 

Sec. 2900-d. Highway commission to designate engineers — ex- 
penses. The highway commission is hereby authorized to use any em- 
ployees of the engineering department of the State Agricultural Col- 
lege at Ames or of the engineering department of the State University 
of Iowa at Iowa City when such employees are not in the judgment 
of said highway commission required at said colleges, in making such 
inspection and investigation and in making any surveys required in 
such inspection and investigation and in preparing the report above 
mentioned. Students of said institutions may be permitted to aid in 
said work. The highway commission may appoint as chief in charge 
of said work, any of said employees or the state engineer and any oth- 
er competent employee of the state may be designated to aid in said 
work when in the judgment of said commission not elsewhere needed 
and this provision shall take precedence over all other provisions or 
law as to specific employment. When any of the persons herein desig- 
nated are engaged in said work at a place other than at the place of 
regular employment, their actual expenses shall be audited by the 
executive council and paid by the state from the general fund. [36 

G. A. (S. F. 2, § 3.)] 

Sec. 2900-e. Draining meandered lakes. . Every person who shall 
drain or cause to be drained, or shall attempt to drain in any manner, 
any lake, pond or body of water, which shall have been meandered 
and its metes and bounds established by the government of the United 
States in the survey of public lands, shall be guilty of a misdemeanor 
and be punished by a fine not exceeding one thousand dollars. Pro- 
vided, this shall not apply where the drainage was or is authorized by 
law. [36 G. A. (S. F. 3, § 1.)] 

Sec. 4805. Obstructing public ditches or drains. If any person 
place any obstruction in any of the public ditches or drains made for 
the purpose of draining any of the swamp lands in this state, he shall 
be compelled to remove the same, and be fined not less than five nor 
more than one hundred dollars, or be imprisoned in the county jail 
not more than thirty days. [C. '73, § 3992.] 



1940 4 



INDEX 



STATUTES IN EFFECT PRIOR TO ADOPTION OF CONSTITUTIONAL 
AMENDMENT NOVEMBER 3, 1908. 

Constitutional provision, sec. 18, art. 1 * 

Supervisors to locate, sec. 1939 

Proceedings — bond — survey — notice, sec. 

Location — damages, sec. 1941 ^ 

Claim for damages, sec. 1942 

Work divided, sec. 1943 

Letting work — payment, sec. 1944 

Costs and fees — how paid, sec. 1945 

Assessments of costs and damages, sec. 1946 ° 

Proceedings now pending, sec. 1946-a 

Re-assessment and re-levy, sec. 1946-b 

Completion and payment of work already begun, sec. 1946-c ljj 

Drainage bonds, sec. 1946-d 

exempt from taxation, sec. 1304 

Future levies, sec. 1946-e 

Appeals, sec. 1947 

Nuisance, sec. 1948 . . . , 

Through two or more counties, sec. 1949 

apportionment of assessments, sec. 1950 

(see also sec. 1989-a55) 

Levees, ditches or drains in public highways— highway along levee, ^ 

sec. 1951 

Petition for drain — proceedings, sec. 1952 

Drainage bonds, sec. 1953 

Tax to pay bonds, sec. 1954 

Drainage across lands of others— application— notice— claim for dam- 

-, nr-r- 15, 16 

ages, sec. 1955 ' 

hearing — action of trustees, sec. 1956 

appeal, sec. 1957 

transcript, sec. 1958 

cost and damages paid— location through or across railroad lands 

sec. 1959 17 ' ^ 

repairs, sec. 1960 

penalty for obstructing, sec. 1961 

connecting drains, sec. 1962 

(see also sec. 1989-a55) ! 

Drains along highways, sec. 1963 • ' . 

(see also sec. 1989-b to 1989-bl3) T ' ™ 

across highways, sec. 1964 

supervisor shall construct, sec. 1965 

construction by owner, sec. 1966 



STATUTES ENACTED AFTER ADOPTION OF CONSTITUTIONAL AMEND- 
MENT, NOVEMBER 3, 1908. 

Q 

Constitutional provision, sec. 18, art. 1 • • • • • ■ • 

Board of supervisors to establish drainage district, sec. 1989-al ^ 

Proceedings— bond— survey, sec. 1989-a2 • • ■ • • • • • • » 

Notice of hearing— approval of plan— hearing postponed, sec. 1989-a3. .30, 31 

Claims for damages, sec. 1989-a4 • • ^ 

Location — damages, sec. 1989-a5 '" ' 

Assessment of damages— appeal, sec. 1989-a6 - *»» < 



90 INDEX 

Page 

Damages, by whom paid — bond— engineer, sec. 1989-a7 . . . . 38 

Letting work, sec. 1989-a8 38, 39 

Payment, sec. 1989-a9 " 3y 

Failure to perform work — penalty, sec. 1989-alO 40 

Changes in dimensions, sec. 1989-all 40 

Assessment of costs and damages, sec. 198«9-12 41,42 

Levy and collection of tax, sec. 1989-al3 , . . . 43 

Appeal — drainage record — employment of counsel — order of establish- 
ment rescinded, sec. 1989-al4 44,45 

Nuisance, sec. 1989-al5 .' 46 

Subsequent proceedings, sec. 1989-al6 46, 47 

Relevy, sec. 1989-al7 47 

Establishment and construction across railroad right of way, sec. 

1989-al8 47, 48 

Construction across highway, sec. 1989-al9 49 

Construction on or along highway, sec. 1989-a20 50 

Control — repairs, sec. 1989-a21 50 

Outlet for lateral drains, sec. 1989-a22 . .50, 51 

Sub-drainage districts, sec. 1989-a23 51 

Enlargement of water course or stream, sec. 1989-a24 51, 52 

New levee or drainage districts, sec. 1989-a25 52 

Special assessments — how paid — improvement certificates, sec. 1989-a26.53, 54 

Drainage bonds, sec. 1989-a27 54, 55 

exempt from taxation, sec. 1304 . . 4 81 

Establishment when owners mutually agree, sec. 1989-a28 55,56 

Establishment through two or more counties, sec. 1989-a29 56,57 

claims for damages — where filed, sec. 1989-a30 57 

hearing — appraisers, sec. 1989-a31 57 

assessment of costs and damages — improvement certificates — 

bonds, sec. 1989-a32 57,58 

letting work, sec. 1989-a33 58 

supervising engineer — contractor, how paid, sec. 1989-a34 58,59 

appeals, sec. 1989-a35 59 

district court to establish — when, sec. 1989-a36 59, 60 

special sessions of boards of supervisors, sec. 1989-a37 60 

(see also sec. 1989-a55) 70 

Cities and towns included in districts, sec. 1989-a38 60, 61 

Retroactive, sec. 1989-a38a 6,1 

Outlet in another state, sec. 1989-a39 61 

Watchmen, sec. 1989-a40 61 

Fees and expenses, sec. 1989-a41 62 

Additional help for county auditors — drainage record, sec. 1989-a42.... 62 

Draining of highways, sec. 1989-a43 and sec. 1989-b to 1989-bl3 62,63 

Inspection by engineer, sec. 1989-a44 63 

Tax lien upon premises, sec. 1989-a45 63 

Defects in proceedings, sec. 1989-a46 63, 64 

Additional to statutes, sec. 1989-a47 64 

Preliminary drainage expenses — how paid, sec. 1989-a48.. 64,65 

Pumping stations, sec. 1989-a49 and sec. 1989-a52 65, 66 

Pumping Stations and levees — petition for management by trustee, 

sec. 1989-a52a 66 

Canvass of petition — election ordered — notice, sec. 1989-a52b 67 

Election — canvass of returns, sec. 1989-a52c 67 

Term of office vacancy, sec. 1989-a52d 67 

Biennial election, sec. 1989-a52e 67 

Powers and duties of trustees, costs and expenses, sec. 1989-a52f . . . . 67 

Report — filed with auditor for record, sec. 1989-a52g 68 

Petitions heretofore filed, sec. 1989-a50 66 

Statutes applicable, sec. 1989-a51 66 



INDEX 91 

Owners may drain, sec. 1998-a53, 



Page 

68 

Additional lands included in drainage district, sec. 1989-a54 69,70 

Outlet acquisition of land for outside limits of county— procedure, 

sec. 1989-a55 

Pending litigation not affected, sec. 1989-a56 <« 

Claims of sub-contractors— filing— priority, sec. 1989-a57 <i 

Adjudication— attorney's fees, sec. 1989-a58 • • 

Release of claim— contractor may file bond for, sec. 1989-a59 71 

Not retroactive— pending litigation not affected, sec. 1989-a60 71 

TRANSFER OF CARE OF CERTAIN DRAINAGE DITCHES TO LOCAL 

BOARDS OF TRUSTEES. 

Drainage district under trustees— procedure, sec. 1989-a61 72 

Inter-county district— petition where filed, sec. 1989-a62 ^ 

Canvass of petition-election ordered— election board-election of trus- 

tees, sec. 1989-a63 • ■ • ; ■ ■ • iZ - 

Canvass of vote— certification of result— certificates of election, sec. 

1989-a64 „ 

Tenure of office, sec. 1989-a65 and sec. 1989-a66 <* 

Vacancies, sec. 1989-a68 " * 

Elections— how conducted, sec. 1989-a69 ' 

Organization— selection of clerk, sec. 1989-a70 . • 

Trustees-bond-duties-powers-readjustment of assessment-ex- 

penses, sec. 1989-a71 

Trustees to report proceedings to auditor, sec. 1989-a72. •■.•■•■• ■•••■■ '* 
Voting by agent— votes cast in proportion to assessment, sec. 1989-a73.74, 75 

Compensation, sec. 1989-a74 ;■''*'« nK 

Certified copies of assessment to determine voting power, sec. 1989-a75 7o 

Conflicting acts repealed, sec. 1989-a76 ■ •• • ■■ • • • •••■•• 

Interstate drainage-cooperation with authorities of sister state- 



procedure, sec. 1989-a77 •••• i^o"™ ' 7fi 

Conditions precedent to letting contract or issuing bonds, sec. 1989-a78 76 
Repairs and improvements, sec. 1989-a79 

DRAINAGE OF PUBLIC HIGHWAYS. 

(See also sec. 1964 and sec. 1989-a43) 18. 62, 63 

Drainage of highways— survey and report, sec. 1989-b..... 

Survey _what it may include-names of land-owners-plans, sec. ^ 

1989-bl ' ' 7 - 

Notice— objections— damages— waiver, sec. 1989-b2 ^ < < 

Notice — how given, sec. 1989-b3 » » 

Determinations by board-adjournment-establishing district, sec. 

1989-b4 



Commission-apportionment of cost-county, township and district to 

j._ !_„,„ ^ni^ can 1QRQ-V»h 

on, sec. 1989-b6 78, 

Qn»Mii.l assessments to be advanced, sec. 1989-b7 '^ 

AppeS "ow talcen-how tried-abandonment of : plan —c 

Townships not within district may contribute, sec. 1989-b9 79 

Costs in case of abandonment, sec. 1989-blO ™ 

Engineering costs not included, sec. 1989-bll • • .79-80 

Deficit— how paid, sec. 1989-bl2 gQ 

Maintenance, sec. 1989-bl3 

OTHER PROVISIONS OF THE LAW RELATING TO DRAINS. 

Filling or draining lots in cities and towns, sec. 698 80 

drainage of, to be preserved, sec 699 «i 

Powers and duties of trustees, sec. 1528 81, ^ 



92 INDEX 

Compensation of trustees, sec. 590 82^3 

County road and drainage funds— how levied and' paid' out,' sec. 1530 " 83* 84 

Exemption of drainage bonds, sec. 1304 -. ' 81 

Shade trees — timber — drainage, sec. 1556 \ ' * 84 

Channels or ditches along- railroad right of way, sec. 2014 85 

Open ditches and water breaks— construction prohibited— removal- 
duty of officers— etc., sec. 1560-a'to 1560-e 84 85 

Obstructing public ditches or drains, sec. 4805 ' 87 

Acquisition of land for outlet purposes— condemnation 'proceeding's 

sec. 1989-a55 70 

State to condemn land for institutions of United State's— damages paid 

— conveyance of title, sec. 2024-a-b 85, 86 

MEANDERED LAKES AND LAKE BEDS. 

Repeal of chap. 2-b, supp. 1913, sec. 2900-b 86 

Highway commission to inspect lakes— report ordered— requirements 

sec. 2900-c ' g6 8? 

Highway commission to designate engineers— expenses, sec. 2900-d! '." ' 87 
Draining meandered lakes, sec. 2900-e 87 



UNITED STATES LEVEES. 

Proceedings, sec. 1976. 



Assistance by counties, sec. 1975 2 o 



21 

Commission, sec. 1977 • 21 

Notice, sec. 1978 ,. 2122 

Hearing, sec. 1979 * ' ' „ 

Appeal, sec. 1980 22 23 

Work carried on — land condemned, sec. 1981 '23 

Costs assessed, sec. 1982 " ' 2 „ 

Collection of tax, sec. 1983 23 24 

Annual installments, sec. 1984 " ' 24 

Bonds, sec. 1985 24 

Claims for repairs, sec. 1985-a 25 

Cost of maintaining, sec. 1986 25 

District formed, sec. 1987 or 

40 

apportionment of cost, sec. 1988 25 

Through two or more counties, sec. 1989 26 



DRAINAGE OF COAL LANDS OR LEAD OR ZINC 31INES. 

s assessed, sec. 1! 
Compensation, sec. 1968 



Damages assessed, sec. 1967 19 



19 

Setting apart, sec. 1969 19 

Penalty, sec. 1970 1 „ 

Notice to smelters, sec. 1971 9n 

Right of way, sec. 1972 .... . 20 

Damages, sec. 1973 20 

Consent of owners, sec. 1974 9Q 



